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DUI Defense Attorney in Torrance, CA

Did You Get Pulled Over for Driving Under the Influence in Torrance, CA?

If you’ve been arrested for driving under the influence or have been charged accordingly, you need to talk to an experienced criminal defense attorney. Pleading guilty to a DUI can affect you in the future as it is a prior offense and will stay on your record for a period of 10 years. Allow our team to conduct a thorough investigation of your arrest and DUI charge.

Ernenwein & Mathes, LLP, utilizes a team approach and will bring in our investigator, as needed, to help clients achieve the best possible resolution. Robert Ernenwein is a criminal defense lawyer and he, along with attorney Michelle Mathes, provide our clients with a creative aggressive criminal defense. You can rely on our over 60 years of experience to defend you in your DUI case.

What You Face With a DUI Charge in Torrance, CA

Driving under the influence (DUI) is a serious crime in California. You don’t have to intend to break the law or even hurt anyone to face serious criminal charges that could put you behind bars and take away your driver’s license. Having a skilled DUI defense attorney can make a huge difference in the outcome of your case and can be the difference between a costly conviction and a clean criminal record.

The Crime of Driving Under the Influence in California

California law makes it illegal to drive a vehicle while under the influence of alcohol or drugs, or with a blood alcohol content (BAC) of .08 or above. (Vehicle Code section 23152)

California law makes it illegal to drive a vehicle while under the influence of alcohol or drugs, or with a blood alcohol content (BAC) of .08 or above. (Vehicle Code Section 23152 (b)) For drivers under the age of 21, the limit is even lower. (Vehicle Code Section 23136) (Vehicle Code Section 23140).

Unlike most criminal laws, you can be guilty of DUI regardless of whether you intended to break the law, or whether you knew you were over the legal BAC limit. You can be found guilty of DUI even if no one was hurt in any way. You can even be charged with a DUI if your BAC was under the legal limit. (Vehicle Code Section 23152 (a))

Pulled Over for a DUI in Torrance, CA? Here’s What You Need To Do

If you are pulled over by the authorities on suspicion of driving under the influence, the best course of action is to remain calm and follow the officer’s instructions. The officer will ask for your license and registration. It is important to be polite and cooperative when answering questions, but you should also avoid saying anything that could be used against you in court. For example, you should not admit to drinking or offer any explanations for why you were pulled over. If the officer asks you to step out of the car, you should do so quietly and without resistance. The officer may then conduct a series of field sobriety tests, which you should also cooperate with. However, you should remember that you have the right to decline a chemical test. If you are arrested, contact an experienced DUI attorney as soon as possible. An attorney can help protect your rights and ensure a fair chance in court.

Criminal And Administrative Aspects of a DUI

One confusing part about DUI charges is that they involve both criminal and administrative aspects.

The criminal part of a DUI charge involves prosecutors and the courtroom as the state of California tries to punish you for violating the law. If you lose, you get convicted, pay fines, have a criminal record and could even face jail time.

The administrative aspect of a DUI charge involves you and the Department of Motor Vehicles (DMV). They will try stripping you of your driving rights by suspending your license and putting obstacles in your way to getting it back. You only have 10 days after a DUI arrest to request a DMV hearing or you will automatically have your license suspended. (Vehicle Code Section 14103)

Penalties for DUI in California

If you get convicted for DUI in California, the penalties that you could face, from both the criminal and the administrative portion, depend in large part on whether you’ve been convicted for DUI before and whether there are any aggravating factors involved.

A conviction for a DUI in California will appear on your record for 10 years. (Vehicle Code Section 23540) This can impact your insurance costs and your ability to find or hold a job, making avoiding a conviction absolutely critical.

How Police Enforce California’s DUI Laws

DUI is a very politically charged crime: Advocacy groups have gotten the ears of local and state lawmakers, pressuring them to enforce drunk driving laws in the state. Police departments devote lots of time and resources toward finding intoxicated drivers.

This makes getting pulled over by police who suspect you of being under the influence a common occurrence. Once on the side of the road, police have several tools at their disposal to tease out evidence of a DUI crime. Unfortunately, they can be very unscientific and prone to inaccuracies that can get you in trouble, even if you are abiding by the law.

Both field sobriety tests, which test your body’s reactions to set stimuli for signs of drunkenness, and chemical breath tests, which need to be properly calibrated and can be manipulated by law enforcement, can lead to false positives that create false evidence against innocent DUI suspects.

How to Defend Against a DUI Charge in Torrance, CA

Despite the field being tilted in favor of law enforcement, it is still possible to raise effective defenses against a DUI charge.

One of the most common defenses is challenging whether the arresting officer ever had probable cause to initiate the traffic stop. (Penal Code Section 1538.5) A traffic stop is both a search and a seizure, so police need to have a reason to do it or else they violate your civil rights. If the traffic stop is a violation, any evidence they get whether for DUI or for another crime will be thrown away. These challenges are commonly referred to as motions to suppress the evidence.

Even if the police didn’t violate your rights, there are still ways to challenge the evidence that they manage to go to trial.

Plea Deals Can Minimize the Penalties While Avoiding a Trial

In between the criminal charge and the trial, there will be an opportunity to discuss a plea deal. Prosecutors, and especially judges, often want criminal cases to be settled out of court.

In some of these cases, a plea deal can be negotiated by your defense lawyer who manages to protect your interests. Depending on your circumstances, this offer might be worth thinking about because you might be in a position to deal with the repercussions of the plea, but not a bad outcome at trial.

The help, knowledge and experience of a DUI defense attorney can be invaluable at this time as you make a decision that will have a significant impact on the rest of your life.

How to Choose the Best Torrance DUI Lawyer for Your Case

If you face driving under the influence (DUI) charges, selecting the right lawyer to represent you is important. With so many lawyers to choose from, it can be challenging to find the best one for your case.

Here are a few tips:

  • Ask around for recommendations. Talk to friends, family, and co-workers who have been in a similar situation. They may be able to give you the name of a lawyer that they have used and would recommend. Specifically, ask them about their experience with the lawyer and why they would return to them in the future.
  • Research each lawyer you are considering. Check their website and read online reviews. You should also contact your local bar association to verify if any complaints have been filed against the lawyer. This can give you peace of mind that you are hiring a reputable lawyer.
  • Check out their knowledge of California DUI law. When you meet with the lawyer, ask about their experience, specifically with DUI cases. Find out how many cases they have handled and their success rate.
  • Make sure you feel comfortable with the DUI lawyer. This is important because you will be sharing personal information with them. You should feel like you can trust them and that they have your best interests at heart.
  • Communication is key. You should feel like the lawyer is keeping you updated on your case and will be available to answer any questions you may have. Ask how they prefer to communicate with their clients and what their process is for returning phone calls and emails.
  • Ask about the cost. This is very important to consider when hiring a lawyer. Find out how much they charge and what their payment structure is. For example, some lawyers may require a retainer fee, while others bill by the hour. Also inquire about any additional costs, such as court fees or expert witnesses.
  • A commonly overlooked quality in a DUI lawyer is compassion. Many people who are charged with DUI are first-time offenders. They may face a loss of their license, high fines, and even jail time. A good DUI lawyer will be understanding and sympathetic to your situation. When meeting with potential lawyers, do a gut check to see if this is someone you could see yourself working with through a difficult time and if they inspire confidence.
  • Schedule an initial consultation with each lawyer on your list. This will allow you to meet with them in person and discuss your case. Ask questions about their experience, fees, and how they would handle your case. During your discussions, pay attention to how well they listen and if they seem truly interested in helping you. You want to leave the meeting feeling confident that this is the right lawyer for you.

After meeting with each lawyer, take some time to compare your options. Then, consider all the factors and make your decision. Hiring the right lawyer can significantly alter the outcome of your case, so take your time and choose the right one.

What to Expect During Your Trial

A criminal trial is a complex legal proceeding that can be confusing and intimidating. If you are facing trial, it is important to understand what to expect so that you can be prepared. The first step is an arraignment, during which the charges against the defendant are read aloud in court. The defendant then has the opportunity to enter a plea of not guilty or guilty. If the defendant pleads not guilty, the next step is the pretrial conference, during which the judge and lawyers from both sides discuss potential motions and evidence. This is followed by jury selection, during which a group of citizens is chosen to hear the case and decide on a verdict. Once jury selection is complete, the trial begins. Opening statements are made by both the prosecution and defense, followed by witness testimony and closing arguments. The jury then deliberates and renders a verdict of guilty or not guilty. If the verdict is not guilty, the defendant goes free. If the verdict is guilty, sentencing will take place at a later date. Understanding these steps can help ease your anxiety and give you a better idea of what to expect during your criminal trial.

Key Factors That Will Aid Your DUI Defense

You may wonder what will be considered during your defense if you have been accused of a crime. Some factors that will be considered include the severity of the crime, the evidence against you, your criminal history, and whether you admit to or deny the charges. The prosecutor will also examine your character and determine whether you are likely to commit another crime. In addition, they will consider the impact of the crime on the victim and whether you took any steps to minimize the harm. Ultimately, the goal of your defense is to present a convincing argument that you are not guilty of the crime. By providing evidence and refuting the prosecution’s arguments, you can improve your chances of achieving this goal.

Free Consultations With Aggressive Torrance DUI Defense Lawyers

The attorneys at Ernenwein & Mathes, LLP, provide professional legal guidance for clients facing criminal allegations. We have practiced criminal law for more than 60 years, and we know that there are alternatives to taking a plea deal. Rely on us to defend you as if your criminal allegation were our own.

We offer a free consultation at our office in Torrance; call us at 310-375-5858. You can also reach us by completing this online contact form.

Torrance, California DUI Law Resources

Real DUI Success Stories California

Real-Life Examples of Successful DUI Defenses From Our Torrance Defense Lawyers

It is easy to feel a sense of doom and gloom when you are arrested and charged with driving under the influence (DUI) in Torrance, CA. No matter if this is your first, second or third offense, it can still be an unnerving experience. You already know that the prosecution will go after you — what you don’t know is if there is hope.

The team at Ernenwein & Mathes, LLP, regularly represents individuals who have been accused of DUI, and we have had many success stories. One of the best ways to put your mind at ease when worrying about your future after a DUI allegation is to read about others who have been in similar situations. We have compiled a short list of some of the cases we have successfully resolved, which should serve as motivation for you to start building your defense (or at least hire an attorney to do it for you).

  • A felony DUI offense was reduced to a misdemeanor charge with no jail sentence. This particular client had originally been charged with a felony DUI, which was accompanied by up to a six-year prison sentence. She had been in a rollover accident in which her passenger was injured. We were able to get her offense reduced to a misdemeanor, and she did not have to go to jail.
  • A DUI charge was reduced to a wet reckless offense. Our client had been accused of driving under the influence. His blood alcohol concentration had been measured using a breath test, but because we were able to suppress evidence, the prosecution reevaluated its case. They came with a reduced charge, meaning our client was able to avoid having an ignition interlock device and other penalties.
  • Charges associated with DUI and refusing a chemical test were dismissed. When our client came to our firm, he had been accused of refusing a chemical test and driving under the influence. After we reviewed the evidence, we were able to argue that our client hadn’t refused the chemical test, but instead hadn’t been advised of his obligation to take it. In fact, we discovered that our client had agreed to the test, yet it was never administered. We were able to get his charges dismissed.

How We Can Help You

Have you or someone you know been charged with DUI or any other crime in California? Contact Ernenwein & Mathes, LLP, Torrance criminal defense lawyers, today at 310-375-5858 for a free case review.

Attacking The Evidence In A DUI Case in California

If you have been pulled over, arrested and charged for driving under the influence (DUI) in California, you may be able to successfully challenge the evidence that law enforcement has gathered against you. If you do not, you could face a costly conviction that strips you of your right to drive, forces you to pay steep fines and could even put you in jail.

Challenging evidence of a DUI is crucial to winning your case. Here are just a few of the tools that the DUI defense attorneys at Ernenwein & Mathes, LLP, can utilize.

Challenging The Traffic Stop

Nearly all of the evidence that you were driving under the influence is gathered after the police officer pulls you over. Before the traffic stop, the officer has very little evidence to go on.

In America, the police cannot just put their lights and sirens on and pull people over at random or because they feel like it. In criminal law, the police need to have some amount of suspicion that a crime, like DUI, has occurred before they can pull people over and start searching for evidence.

When they do not have a good enough reason to initiate a traffic stop for DUI, the whole traffic stop may be considered an illegal search that violates your rights. Any evidence found during an illegal search can be excluded from court and cannot be used against you.

Showing that the police did not have a good reason to pull you over and that your rights were therefore violated is one of the best defenses that a DUI defense lawyer can raise in a DUI case. This indirect way of challenging the DUI evidence against you can completely destroy the prosecutor’s case and frequently leads to a dismissal of the charges.

Challenging The Allegations Of ‘Objective Symptoms’ Of Intoxication

In preparing their reports after DUI arrests, police officers will frequently make reference to a person’s clumsy behavior, such as wavering, stumbling or general confusion. They will also often refer to a person’s slurred speech or reddened, flushed face. All of these so-called objective symptoms of intoxication are also common reactions to extremely high-stress situations, such as confronting a police officer. Other symptoms frequently referred to by police officers, such as bloodshot or watery eyes, can be explained by fatigue, by long periods of driving time, or by allergies or airborne pollutants.

The objective symptom most frequently referred to by arresting officers, of course, is the powerful odor or smell of alcohol. It is important to remember, however, that alcohol is an odorless substance. When an officer refers to an alcoholic odor, he is actually smelling the flavoring of the alcohol, not the alcohol itself. Of all alcoholic beverages, beer usually leaves the strongest odor on a person’s breath, yet it is one of the least intoxicating of alcoholic beverages.

Challenging DUI Evidence From A Breath Test

Despite the reassurances from law enforcement, breath tests can be highly inaccurate. Breath test machines have shown that they can be triggered by environmental influences like latent mouth alcohol, air bubbles from hiccups or burps, and even rotting food. These can make the breath test machine give back a reading that is much higher than your true blood alcohol content (BAC).

Additionally, these tests rely on the police keeping the machines in proper working order, regularly calibrating, testing and cleaning these devices. If these breath test machines are not kept in good repair, they can be wildly inaccurate, at an innocent driver’s expense.

Challenging evidence that comes from a breath test is one of the most important ways that a DUI defense lawyer fights to protect your rights.

Challenging DUI Evidence From A Field Sobriety Test

Before even making an arrest, police in California usually ask suspected drunk drivers to perform field sobriety tests. These are physical tests that are meant to test your motor skills and ability to follow instructions; failing them can be used as a sign of inebriation.

Some field sobriety tests, like the walk-and-turn or the one-leg stand, can be difficult even for sober and athletic adults. If you are sober, but uncoordinated, over the age of 50, overweight or injured, you can have trouble completing these tests and end up giving police powerful evidence that they have cause to place you under arrest for driving under the influence, even if you were not impaired.

Even the horizontal gaze nystagmus (HGN) test is prone to producing false positives. This is the test where the police officer asks the driver to follow a pen, light or some other object with their eyes. The National Highway Traffic Safety Administration (NHTSA) has admitted that the horizontal gaze nystagmus test was only accurate 77% of the time.

If the police are relying on evidence that you were under the influence from field sobriety tests, having a DUI defense attorney can be a huge help because they understand how these tests are supposed to work, where they fail, where police can make mistakes and how to beat them.

Challenging The Blood Test Results

In cases where a blood test was used to determine your blood alcohol concentration, we will obtain a court order releasing the actual blood sample used in your case, and that sample will be independently evaluated for preservative level and blood alcohol concentration. Often, independent testing will reveal an insufficient preservative level or a lower blood-alcohol level than was determined by the police laboratory.

In addition, our DUI law firm will examine the chain of custody of the blood sample. The chain of custody essentially consists of how the blood sample was retrieved by medical personnel and then transported to the laboratory. If there is a break in the chain of custody, this may affect the admissibility of the blood test evidence in court. Also, as your DUI attorney, we will determine who drew your blood sample. Under certain provisions of the California Vehicle Code, only certain qualified personnel can draw a blood sample. If an unqualified person drew your blood, then the results of that blood sample may not be admitted as evidence.

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, we may be able to successfully argue that, at the time that 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 subsequent 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 and that, when you were tested, your body was still absorbing alcohol, thereby showing an artificially high reading.

In other words, your blood alcohol concentration may have been rising at the time of testing (because alcohol ingestion was not completed) and, therefore, your BAC level was actually lower at the time of driving.

Researchers have found that 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 to analyzed blood samples).

The ‘No-Driving Defense’

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?

Most of the time this is not an issue. The police usually observe the DUI suspect driving a moving automobile on a highway, such that this element is often taken for granted and, therefore, there is no contention about this issue. However, on occasion, the arresting officer has not actually seen the conduct that, irrefutably, constitutes “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, driving actually requires that the person exercise volitional movement of the vehicle.

Mind you, 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 if the circumstances can show that you had pulled over to rest, your vehicle was 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, our Torrance DUI lawyer may be able to successfully advance this argument and have your case dismissed before or at trial.

Ernenwein & Mathes, LLP, has been representing people charged with DUI for over 60 years. We have represented thousands of individuals before the DMV and in court since 1987. We pride ourselves as experienced and compassionate attorneys. We fight for our clients to obtain the best possible result. We walk together with our clients throughout every aspect of their case including the DMV and court. A more thorough explanation and a full evaluation of your case are available by calling or visiting the firm for a free consultation.

If you would like to speak to an attorney immediately, consider calling us: 310-375-5858.

Remember, your call or your visit to our office for a consultation is always free.

DUI Court Process in California

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 Torrance, CA, 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 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 California 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.

DUI Related Enhancements

Driver Is Under 21 Years Old (Underage DUI)

In California, a minor (20 or under) is not allowed to have any measurable amount of alcohol in his or her blood (that is, so much as even .01% under California Vehicle Section 23136). If he or she is found guilty of violating this vehicle code section, the minor faces an automatic one-year suspension of his or her driver’s license. 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.

The California Vehicle Code allows for no slack or leeway in the alcohol content of an underage driver. Where 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 concentration of .07 or lower, a minor (20 or under) is not allowed to have any measurable amount of alcohol in his or her blood (that is, so much as even .01% under California Vehicle Section 23136.

If he or she is found guilty of violating this vehicle code section, the minor faces an automatic one-year suspension of his or her driver’s license. 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 from one to three years. The length of the suspension is based on whether the minor has had 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 particular offense alone; however, the minor’s California driving privilege may be severely impacted.

Additionally, 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 concentration of .08 or higher. A first-offense conviction for DUI can result in significant fines, lengthy probation, lengthy alcohol program, license suspension and more.

An additional charge 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 an infraction, it is yet another charge with which to contend.

If you or your 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, and other very costly and burdensome consequences.

The punishments for a California Under 21 DUI conviction can be severe. They may include:

  • Heavy fines
  • License suspension
  • Alcohol counseling
  • Driving education

If someone under 21 is pulled over with a higher blood alcohol level, .08 or more, or causes an accident while intoxicated that injures or even kills another person, the punishments are much more severe. You may face time in prison, a revoked license and more.

Whatever the charges against you or your child, you don’t want to leave anything to chance. The best way to fight charges against you is to meet them head-on, using hard evidence and expert testimony to prove your innocence and clean up your criminal record.

For more information about your legal rights in these cases, or if your child faces strict punishments in one of these cases, you need to speak with an attorney at Ernenwein & Mathes, LLP, as soon as possible.

Minor Children In The Car At The Time Of The DUI Arrest

A DUI charge in California is often classified as a misdemeanor but can have serious consequences that vary depending upon factors such as prior record and circumstances of the incident. If there was a minor passenger present in the vehicle at the time, then the consequences can be more severe. California Vehicle Code Section 23152 covers the crime of driving under the influence, but the Vehicle Code also contains a section regarding enhanced penalties for DUI convictions depending on circumstances such as these.

The Possible Consequences

Under California Vehicle Code 23572, DUI penalties are enhanced to varying degrees by the presence of one or more minors in the vehicle. In this case, a minor is any child 14 years old or younger. The additional penalty added onto a DUI charge under this section depends upon the prior record of the driver. However, the minimum additional penalty is two days in county jail. From there, the penalties become more severe.

The additional penalty sounds fairly straightforward, but things can get substantially more complicated if not handled correctly. This is because the California Penal Code also deals with the presence of minor children in a vehicle that was being driven under the influence. California Penal Code Section 273(a) provides that it is a crime to willfully endanger a child — which could be filed as a felony or misdemeanor — and has very serious consequences. California considers willful endangerment of a child to include driving under the influence with a minor in the vehicle. Conviction under this section could have very serious consequences such as probation, jail time or significant fines — in addition to the consequences that follow conviction under a felony criminal charge, which can include loss of employment.

How The Enhancement Of A DUI Works With The Felony Child Endangerment Charge

When a DUI is charged that alleges the presence of a minor child in the vehicle, the complaint may contain charges under the DUI provision with the enhancement attached, in addition to a charge of child endangerment. However, in the end, punishment can only be doled out under either the vehicle code DUI enhancement, or the child endangerment statute, but not both — this is because both sections are punishment for child endangerment, essentially the same act, and it is established law that the same act is generally not punishable as multiple crimes in this context. Therefore, if you are convicted of a DUI with the minor passenger enhancement, you will not be subsequently convicted under the potentially more serious child endangerment section, 273(a) of the penal code.

What this comes down to is prosecutorial discretion. Essentially, the prosecutor has two choices when charging your DUI when a minor passenger is involved. The prosecutor can seek either to punish you with the enhancement provision of California’s DUI law or pursue a more serious felony charge of child endangerment under the penal code. While it is true that in California, under the Swann-Gilbert doctrine, a crime should be charged under the most specifically relevant law to the incident, that does not force a prosecutor to use the DUI enhancement instead of the California Penal Code Section 273(a) charge. This is because the DUI enhancement references the child endangerment charge under the penal code, thus making that doctrine inapplicable.

What Can Be Done To Avoid Prosecution For Felony Child Endangerment In This Situation?

An experienced attorney can help to avoid charge or conviction under the felony child endangerment statute — either through negotiation or argument in trial. Hiring an experienced attorney right away to handle any DUI charge is the best way to make sure your chances of avoiding felony conviction are as good as possible.

Contact Ernenwein & Mathes, LLP

Ernenwein & Mathes, LLP, has been providing representation for people charged with DUI for decades. We have represented thousands of individuals before the DMV and in court since 1987. We fight for our clients to obtain the best possible result. We walk together with my clients throughout every aspect of their case, including the DMV and court. A more thorough explanation and full evaluation of your case are available by calling or visiting the firm for a free consultation.

Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Mathes, LLP, Torrance criminal defense lawyers today at 310-375-5858 for a free case review.

Remember, your call or visit to our office for a consultation is always free.

Social Media Could Hurt Your California DUI Case

In a society where social media is at the very center of our lives, it is not uncommon to share details about our most recent outings. For example, maybe you went out for a night of partying with friends and posted pictures on Facebook or Instagram. No big deal, right? Let’s say that you were stopped that very same evening for suspected drunk driving and arrested. Those pictures you posted may be used as evidence against you.

Before Facebook, Twitter, Instagram, YouTube and other social media websites, gathering evidence in a criminal case meant that law enforcement actually how to go out to collect it. Nowadays, they often don’t even have to leave their desks to obtain damaging evidence against someone.

You might be reading this article and thinking, “yeah that’s good to know, but I have already been arrested for DUI, so what now?”

First and foremost, you need to hire an experienced Torrance DUI defense lawyer, who will be able to help you build a strong defense. Then, you need to do the following:

  • Tell your attorney about the social media websites you have used. Do you have a Facebook profile? What about Twitter? Do you post on Instagram? This is information that your lawyer needs to know, so he or she can determine what evidence might be out there that the prosecution will use in your case.
  • Stop posting on social media. What you post on social media websites doesn’t go away-it stays there. Even seemingly harmless conversations via social media can come back to haunt you. Therefore, if you have been arrested for drunk driving, stop making posts on social media sites, period.
  • Talk to your lawyer about canceling your social media accounts. If you have already posted some things that could hurt your defense, talk to your lawyer about it. The best option might be to cancel your accounts, but be sure to discuss it first with your attorney.

Get Help From Someone With Experience

A DUI charge or other criminal offense can seriously affect your future. Not only could you be looking at time behind bars and possible fines, but you may also have trouble obtaining employment in the years to come. It is imperative that you have an experienced lawyer on your side who will build a strong defense on your behalf.

Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Mathes, LLP, Torrance criminal defense lawyers today at 310-375-5858 for a free case review.

The “No Driving” Defense Overview

The prosecutor must prove that you were actually “driving” a motor vehicle. This element becomes difficult for the prosecutor to prove if the police do not observe you driving. If you pulled over to the curbside or a traffic collision occurred, and the police did not see you driving, the prosecutor has a more difficult case on its hands. Also, your blood or breath test must have been obtained within three hours of the time you were driving.

What if I wasn’t driving when I was pulled over? Or if the police did not 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. But what things constitute driving?

Most of the time this is not an issue. The police usually observe the DUI suspect driving a moving automobile on a highway, such that this element is often taken for granted and, therefore, there is no contention about this issue. However, on occasion, the arresting officer has not actually seen the conduct that, irrefutably, constitutes “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, driving actually requires that the person exercise volitional movement of the vehicle.

Mind you, 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 if the circumstances can show that you had pulled over to rest, your vehicle was 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, our Torrance DUI lawyer (South Bay DUI lawyer, Los Angeles DUI lawyer) may be able to successfully advance this argument and have your case dismissed before or at trial.

Ernenwein & Mathes, LLP, has experienced Torrance criminal defense lawyers with over 60 years of experience combined defending persons accused of DUI.

Robert Ernenwein is a former Los Angeles deputy district attorney and is certified as a Criminal Law Specialist by the California State Bar Board of Legal Specialization. He has been selected for inclusion in California Super Lawyers for several years and has appeared as a legal analyst on multiple cable news programs, including Fox News.

The experience and capabilities that the attorneys at Ernenwein & Mathes, LLP, will bring to your DUI defense are unmatched.

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, Robert Ernenwein may be able to successfully argue that, at the time that you were driving, your blood alcohol was below the legal limit, and that the testing that occurred afterwards 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 subsequent 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, and, that when you were tested, your body was still absorbing alcohol, thereby showing an “artificially” high reading.

In other words, your blood alcohol concentration may have been rising at the time of testing (because alcohol ingestion was not completed) and, therefore, your BAC level was actually lower at the time of driving.

Researchers have found that 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 to analyzed blood samples).

Ernenwein & Mathes, LLP, has experienced Torrance criminal defense lawyers with over 60 combined years of experience defending persons accused of DUI.

Robert Ernenwein is a former Los Angeles deputy district attorney and is certified as a Criminal Law Specialist by the California State Bar Board of Legal Specialization. He has been selected for inclusion in California Super Lawyers for several years and has appeared as a legal analyst on multiple cable news programs, including Fox News.

The experience and capabilities that the attorneys at Ernenwein & Mathes, LLP, will bring to your DUI defense are unmatched.

What Happens When One Or More Minor Children Are Present In The Car When Arrested For DUI?

A DUI charge in California is often classified as a misdemeanor but can have serious consequences that vary depending upon factors such as prior record and circumstances of the incident. If there was a minor passenger present in the vehicle at the time, then the consequences can be more severe. California Vehicle Code Section 23152 covers the crime of driving under the influence, but the Vehicle Code also contains a section regarding enhanced penalties for DUI convictions depending on circumstances such as these.

The Possible Consequences

Under California Vehicle Code 23572, DUI penalties are enhanced to varying degrees by the presence of one or more minors in the vehicle. In this case, a “minor” is any child 14 years old or younger. The additional penalty added to a DUI charge under this section depends upon the prior record of the driver. However, the MINIMUM additional penalty is two days in county jail. From there, the penalties become more severe.

The additional penalty sounds fairly straightforward, but things can get substantially more complicated if not handled correctly. This is because the California Penal Code also deals with the presence of minor children in a vehicle that was being driven under the influence. California Penal Code Section 273(a) provides that it is a crime to willfully endanger a child – which could be filed as a felony or misdemeanor – and has very serious consequences. California considers willful endangerment of a child to include driving under the influence with a minor in the vehicle. Conviction under this section could have very serious consequences such as probation, jail time or significant fines – in addition to the consequences which follow conviction under a felony criminal charge, which can include loss of employment.

How the “enhancement” of a DUI works with the felony child endangerment charge

When a DUI is charged which alleges the presence of a minor child in the vehicle, the complaint may contain charges under the DUI provision with the enhancement attached, in ADDITION to a charge of child endangerment. However, in the end, punishment can only be doled out under >either the vehicle code DUI enhancement or the child endangerment statute, but not both. This is because both sections are punishment for child endangerment, essentially the same act, and it is established law that the same act is generally not punishable as multiple crimes in this context. Therefore, if you are convicted of a DUI with the minor passenger enhancement, you will not be subsequently convicted under the potentially more serious child endangerment section, 273(a) of the penal code.

What this comes down to is prosecutorial discretion. Essentially, the prosecutor has two choices when charging your DUI when a minor passenger is involved. The prosecutor can seek either to punish you with the enhancement provision of California’s DUI law or pursue a more serious felony charge of child endangerment under the penal code. While it is true that in California, under the Swann-Gilbert doctrine a crime should be charged under the most specifically relevant law to the incident, that does not force a prosecutor to use the DUI enhancement instead of the California Penal Code Section 273(a) charge. This is because the DUI enhancement references the child endangerment charge under the penal code, thus making that doctrine inapplicable.

What can be done to avoid prosecution for felony child endangerment in this situation?

An experienced attorney can help to avoid charge or conviction under the felony child endangerment statute, either through negotiation or argument in trial. Hiring an experienced attorney right away to handle any DUI charge is the best way to make sure your chances of avoiding felony conviction are as good as possible.

Contact Ernenwein & Mathes, LLP

Our attorneys at Ernenwein & Mathes, LLP, have been representing people charged with DUI for decades. We have represented thousands of individuals before the DMV and in court since 1987. We fight for our clients to obtain the best possible result. We walk together with my clients throughout every aspect of their case including the DMV and court. A more thorough explanation and a full evaluation of your case are available by calling or visiting the firm for a free consultation.

Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Mathes, LLP, Torrance criminal defense lawyers today at 310-375-5858 for a free case review.

Remember, your call or visit to our office for a consultation is always free.

You May Not Have Been Drunk When You Were Arrested For DUI in California

3 Other Reasons You May Have Been Arrested For DUI

Remember the story of the young actress Amanda Bynes? She became notorious, not just for her Hollywood DUI arrest following a collision with a police officer, but also for the action she took after. Apparently, she reached out to President Obama via Twitter for help with her situation.

Bynes, like many other people who have been in similar circumstances, was certain she was not drunk at the time. If you have found yourself handcuffed and hauled off to the police station for driving under the influence, it doesn’t mean you did anything wrong. There are many other reasons as to why you may have been arrested for DUI that have nothing to do with alcohol or drugs.

3 California DUI Defenses You Should Know

Maybe you weren’t drunk when the officer pulled you over-there could be another explanation for either your driving actions or your blood alcohol content (BAC). Below are some possible defenses.

  • Your driving behavior wasn’t good, but that was the only thing wrong. Before stopping a driver for suspected DUI, a police officer will often watch the driving behavior of that person. He or she will be looking to see if the driving pattern matches that of a person under the influence of alcohol or drugs. The thing is that sober drivers may also drive poorly.
  • There was a medical reason for why you showed signs of intoxication. Once an officer has pulled over a driver, he or she will be watching for signs of intoxication. These symptoms include slurred speech; red, watery eyes; and even a flushed face. However, these signs can also be indications of other medical problems.
  • The BAC test result was skewed. Police officers have devices designed to measure BAC. While these devices have allowed law enforcement to recognize when a driver is, in fact, drunk, they are also flawed. Since they are designed to measure mouth alcohol, other things can affect the results. For example, cough syrups and mouthwash can cause mouth alcohol to increase. There could even be medical reasons for the BAC reading, such as acid reflux or medication.

There are many more reasons why you could have been accused of drunk driving. The biggest takeaway is that you shouldn’t sit back and let the prosecution build a case against you without putting up a fight. Therefore, it is in your best interests to contact Robert Ernenwein, an experienced Torrance DUI lawyer who can defend your charges.

Have you or someone you know been charged with DUI or any other crime? Contact Ernenwein & Mathes, LLP, Torrance criminal defense lawyers today at 310-375-5858 for a free case review.

FAQs About California DUI Laws and Penalties

The DMV 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 1 year. If you were pulled over and arrested on suspicion of DUI, the police most probably have already confiscated your license and have 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 in order 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, 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 to 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 persons 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” at all 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 suspension of the driver’s license. 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 also 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 your loved one have 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 very costly and burdensome consequences. My extensive experience and knowledge in this field gives 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 that you were driving, your blood alcohol was below the legal limit, and that the testing that occurred afterwards 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 concentration may have been rising at the time of testing (because alcohol ingestion was not completed) and, therefore, your BAC level was actually lower at the time you were driving that 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 to analyzed blood samples). My extensive experience and knowledge give me the tools I need to successfully challenge DUI charges in California.

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?

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.

10 Common DUI Questions and Answers

My license was taken from me and I have been given a temporary license. What do I need to do?

Most importantly, you need to request a hearing within the first 10 days. If you do not request a hearing within this period you will lose your right to a hearing. Your lawyer can request the hearing for you. Your lawyer will obtain all the necessary documents to review your case and to advise you. Most importantly, your lawyer will represent you at the DMV hearing.

What happens at my DMV hearing?

A hearing officer will receive evidence, including reports from the arresting officer, and decide what, if any, action to take. In most cases, the hearing officer will not take live testimony but will instead rely on the written reports of the officer to reach a decision. Generally, before the hearing officer can suspend a license, there must be sufficient evidence that you were driving, that you were lawfully arrested and that your blood alcohol level exceeded .08%. If there was a refusal of a chemical test or prior offenses, these issues will also be addressed at the hearing.

What defenses might I have at my DMV hearing?

A careful review of the reports submitted by the police must be completed by your lawyer. If there are omissions, errors or inconsistencies in the report, this might be enough to persuade the hearing officer to not take action. Another common defense at the DMV is contesting the reason for the stop of the car. For example, arguing or presenting evidence that there was no violation of law that lead the police to stop the car. In cases where the police did not see driving such as traffic collisions or where a car is simply parked it can be argued that there is insufficient evidence of driving. Another good area for attack is the breath or blood result. In breath test cases, police must comply with a variety of technical laws including a “15-minute observation period.” The officer conducting the testing must be certified and the device must be properly calibrated. With blood testing, there must be certified documents received from the crime lab that all must be in order. Non-compliance with proper procedure is a ripe area for defense at the DMV hearing. Another very common defense at DMV hearings is the “Rising Blood Alcohol Defense” wherein it is argued that the true blood alcohol level at the time of driving was actually below .08% even if a later test registered above. At our firm, we often employ an expert witness to testify to the lack of sufficient evidence of blood alcohol level above .08% at the time of driving.

If I lose the DMV hearing, can I obtain a restricted license so I can keep working?

In most cases, a person will be eligible for a restricted license at some point if the DMV rules against them at the DMV hearing. Generally, in order to obtain the restricted license the person must enroll in an alcohol education class, provide proof of insurance and pay a fee in order to obtain the license. In first offense cases, a person is generally able to get a restriction after 30 days. If a person has prior convictions there is a longer waiting period.

I have been given a citation to appear in court. What is going to happen in court?

The date on your citation is your arraignment date. Generally, your attorney can appear on your behalf at the arraignment. Your attorney will retrieve the reports and continue the case and then meet with you quietly in the office to review plan a strategy for your case. In most cases, your attorney can make all the necessary court appearances for you. Your lawyer will meet with you and review all the reports and go over options and develop a strategy to defend your case. Your attorney will meet with the prosecutor at later dates and negotiate a settlement for you. In certain cases, and only if you think it is in your best interest, the case will proceed to a jury trial. The more prepared and experienced your lawyer, the better result.

What defenses might be available to me in my court case?

There are a wide variety of defenses available to one charged with DUI. They include the following.

  • Insufficient evidence of “driving” or a lack of a good reason for the police to stop your car.
  • Age, obesity or physical problems that explain difficulties on the field sobriety tests.
  • An attack on the breath test or blood test that may include an argument that there was an insufficient “15-minute observation period,” that the person belched or had gastrointestinal reflux disorder causing the instrument to read high or that the accepted rate of error of +/- 10% on the breath and =/- 5% on the blood testing shows a BAC close to or below .08%. In blood cases, we often recommend an independent testing of the blood. Often our results are less than that found by the crime lab.

What happens if I am convicted of DUI?

In most cases, a first offense conviction will NOT result in jail time. Don’t let anyone use scare tactics to tell you differently. A fine, an alcohol program and possibly attendance at a Mothers Against Drunk Driving are common penalties. Importantly, if you are convicted in California it will be mandatory through the DMV that you install an ignition interlock device in your vehicle for a minimum of 90 days. If you refused to take a test, were involved in an accident or have prior offenses there are more severe penalties.

What are common plea bargains/reduced charges that are reached in DUI cases?

There are four common charges that are reductions from DUI related charges (23152(a) and (b)).

23103 pursuant to 23103.5

This reduction is commonly referred to as a “wet reckless”. The penalty is commonly an alcohol awareness class and a fine. The benefit of this reduction is that the DUI counts are dismissed. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). It is important to know, however, that this charge will count as a “prior” if a person is arrested for another DUI within 10 years.

23103(a)

This reduction is commonly referred to as a “dry reckless”. The penalty is commonly an alcohol awareness class and a fine. The benefit of this reduction is that the DUI counts are dismissed. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). This charge CANNOT be alleged as a “prior offense” should you be arrested again for DUI.

23109(c)

This reduction is commonly referred to as “speed exhibition”. The penalty is commonly a fine only. Another benefit, in LA County cases is that the DMV will NOT require an Ignition Interlock Device (IID). This charge CANNOT be alleged as a “prior” offense should you be arrested again for DUI.

“Two Movers”

Just like it sounds, this reduction involves a plea to two traffic infractions. The penalty is commonly a fine only. No ID and the convictions cannot be alleged as a prior offense.

Should I hire a California DUI lawyer?

The decision to retain an attorney is an individual one. If you cannot afford an attorney you can ask the court to appoint a public defender. Abraham Lincoln is quoted as saying: “He who represents himself has a fool for a client.” Being arrested for DUI is serious. There are potential license consequences and court penalties that should be addressed carefully by a professional.

Why should I consider hiring Ernenwein & Mathes, LLP, for my DUI Defense?

Ernenwein & Mathes, LLP, has been representing people charged with DUI for over 60 years. We have represented thousands of individuals before the DMV and in court since 1987. We pride ourselves as experienced and compassionate attorneys. We fight for our clients to obtain the best possible result. We walk together with our clients throughout every aspect of their case including the DMV and court. A more thorough explanation and a full evaluation of your case is available by calling or visiting the firm for a free consultation.

If you would like to speak to an attorney immediately, consider calling us:310-375-5858.

Remember, your call or your visit to our office for a consultation is always free.

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