DUI FAQ

The short answer is yes. There are a number of ways in which an experienced DUI attorney can attack chemical test results. 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 so, breath alcohol testing equipment can also 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, but are not limited to 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 or not 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 feel that you were not driving when you were pulled over — well, this is more of a 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 to prove that you were not actually driving the vehicle (under the legal meaning of driving in the State of 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 the State of 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 which 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 and just resting, the car moves even a few inches after you have put it in neutral, that could be considered as “driving” even if the vehicle only moves just a few inches. 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.

In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been 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 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 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 merely has control of the accelerator and the brakes.

This situation might occur if the driver felt he had to take his hands off the steering wheel and his 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 you inadvertently hit another vehicle, you, the person steering the vehicle, would be considered as “driving” under the law in the State of 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 a DUI even if the police didn’t actually see me driving?

In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been 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 the DUI suspect actually driving the vehicle. However, on occasion, the arresting officer has not actually seen the person “driving.” Instead, the officer has probably found the DUI suspect asleep on the front seat of a car which 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 also 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 tell-tale 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, that your vehicle was turned off, that you had been sleeping, or there could be 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 successfully 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 gotten a DUI can I have a choice of taking either a breath test or a blood test?

The answer is yes – you can have a choice. However, if only one of them is available or not working correctly at the time, then you must take the one that is available at that time. 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 not 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, then 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 very 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. If it’s less than an hour before your last drink, your body is still absorbing alcohol and in that case, while your body is still absorbing the alcohol, the test will give an exceptionally high level. So, in this case, you are better off taking the blood test.

There are certain medical conditions which excuse you from taking a blood test.

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

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 either the blood test or the breath test. The only time you would be able to have the urine test would be if the officer does not have a breath-testing device available or he/she cannot contact a trained technician who could take your blood. That would be the only time that the officer could use the urine test because the urine test is not as accurate as either the breath or the blood tests.

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

The answer is yes – you or your attorney can contact the District Attorney for a copy if they are not stated in the complaint which you received at your arraignment. Because under the law you are rightfully 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 requesting 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?

There are quite a number of defenses that your lawyer can use to fight the DUI charges such as the fact that your erratic driving might not have been alcohol-related. He will note that 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 very tired, blinded by the bright sun, were sick or that you had allergies. All of these conditions might have contributed to what the officer observed as your having been under the influence of alcohol. Another defense that your defense attorney might use is to show the court that the field sobriety tests are not always accurate in measuring a person’s impairment. Generally, you will probably not perform very well on the field sobriety test so, in that case, your lawyer will ask the officer to testify regarding the many ways that you did perform correctly. In that case, the number of things you did correctly will be much more than the things that you did not do correctly.

Your lawyer will also question the accuracy of the tests that you were given. Such as the Horizontal Gaze Nystagmus Test, the finger to nose and one leg stand test.

Nystagmus is a condition of the eyes 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 also in your depth perception. It is also possible that it could affect your coordination and your balance.

How can I fight VC23152(a) DUI Charges?

Your lawyer can also question the way these tests were given to you. Your lawyer will argue that the procedures followed by the police were improper. He will challenge each and every aspect of the handling of your case. He will question as to whether or not the officer had a reasonable suspicion to stop you or even if he had 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 they can possibly be. A violation of the proper procedures which 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 the three field sobriety tests which was developed by the National Highway Traffic and Safety Administration. It was developed to identify drivers who might possibly be drunk. 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 even higher. Nystagmus is the technical name for the condition which produces an involuntary jerking of the eyeball. A 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 which depress the central nervous system. Some of these could 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 and the higher the BAC, the more noticeable the nystagmus. In the Horizontal Gaze Nystagmus test given by a police officer, he will generally place an object, such as a pen, or possibly his finger about 12″ away from the face of the driver. He will then move the object from side to side as he watches the eye movements of the driver. As the officer is watching the driver’s eyes as they follow the object from side to side, 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, then 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 can argue that the police officer who gave you the test was not trained medically and that his ability to assess the angle at which nystagmus occurs is lacking.

Are blood test results always accurate?

The answer is that blood tests are not always accurate. 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 specimen sample to be left untested for several days. Many laboratories simply aren’t able to always test the blood samples immediately due to the high volume of samples in need of testing. There also might have been some unforeseen delay in actually getting the sample to the lab. A blood sample that is simply 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 upon the amount of time that the sample was just sitting around.

In order 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. In order to completely put a halt to the alcohol production in the sample, certain preservatives should be added. Unfortunately, preservatives are not always added.

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

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Generally, when a blood sample is taken from an individual, it is taken from a vein. Interestingly enough, 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 which contains alcohol is going to the individual’s brain and is thus causing the intoxication. For this reason, testing of a blood sample taken from a vein can lead to a conclusion which is not always accurate according to scientists who actually measured levels of blood alcohol in the brain, from blood taken from an artery and blood taken from the veins of people who were known to have drank alcohol. 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 that taken from an artery during the time the alcohol was being eliminated.

Scientists have concluded, after much research and testing, 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 actual intoxication.

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

In the state of 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. There is only a crime of DUI 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 upon 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. There is a specific name for this scientific, mathematic method which is used by toxicologists in trying to figure out what a person’s BAC had been at an earlier point in time. It 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 but is based upon the results at the later time of the testing.

In many Los Angeles County DUI cases it has been shown that retrograde extrapolation is not an exact science and has definite flaws. An experienced criminal defense attorney will point this out to a jury in the event a case does go to trial. He 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. This is because there are various reasons why the rate of alcohol absorption can differ 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, the sex and even the weight of the person.

He can also show that the expert does not really have enough information available to him in order to make his determination and that he is only making 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 his 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 in a predictable manner. It is also necessary to know that all of the alcohol consumed by the individual has been completely absorbed and is currently falling. The alcohol absorption rate is quite unpredictable and can take from about fifteen 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 had made when coming up with his conclusions.

How does alcohol travel through the human 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 in the human body. 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 action of their carbon dioxide which accelerates its entry into the small intestine.

The time that you have eaten is also a factor to be considered 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 your brain which is responsible for processing your thinking is depressed from alcohol, you become less inhibited, much more chatty and overly confident. Your judgment becomes affected and your thinking starts to become really fuzzy. In addition, there is difficulty in your ability to see, to hear and even to 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 your brain that is in charge of your memory and your emotions. That is why you may become lost or not remember events that occurred during or after the time you had been drinking. The part of your brain that controls your muscles is also affected, so you start to become uncoordinated and you also experience loss of your 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 in order for all of the organs in your body to receive all of the blood they require, your heart starts beating faster in order 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 happen, a person becomes dehydrated with a very dry throat, a headache, a feeling of being sick to your stomach and wanting to vomit and just feeling really tired.

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

Drinking too much alcohol gives a person a very 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 which is recognized by your body as a toxic chemical 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 upon the weight of a person, and also their gender. For this reason, there are some people who 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, slur your words and even make you pass out. The small amount of alcohol that is not processed by your liver, about ten 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.