DUI LAWYER

DUI and DMV

When you are arrested for driving under the influence of alcohol, it can be a difficult and challenging event. Undoubtably, you will have many concerns and questions. What effect will this have on my drivers license? What will happen at the criminal court? What laws am I accused of violating? Will I go to jail? What can I do to defend against the charges that have been made against me? These are only a few of the many questions that will be in your thoughts as you consider what to do.
 FIELD SOBRIETY TESTS
CHEMICAL TESTS
BREATH TEST
BLOOD TEST
URINE TEST
PENALTIES FOR DUI
POSSIBLE DEFENSES TO A DUI CHARGE
FIELD SOBRIETY TESTS
If you are pulled over by a California officer who suspects you are under the influence of alcohol, you may be asked to perform a series of exercises known as field sobriety tests, or FSTs. These tests are the most commonly used law enforcement tools used to identify drunk drivers. As a result of the FSTs, you may be arrested for driving under the influence (DUI) if your performance does not meet the officer’s subjective expectations.Field sobriety tests are used to evaluate a driver’s balance, coordination, and attention. This is based on a driver’s ability to perform certain tasks. Although there are many potential FSTs, only three have been approved by the National Highway Traffic Safety Administration for use in determining a driver’s level of impairment: the one-leg stand, walk-and-turn, and horizontal nystagmus tests.To perform a one-leg stand test, you must stand with one foot slightly elevated (about six inches) off the ground for thirty seconds. While doing this, you will be required to count aloud for the duration of the test. If you use your arms for balance or show other signs of impairment such as swaying or hopping you may be arrested and charged with DUI.
In (the walk-and-turn) test, you will be instructed to walk a straight line with one foot placed heel-to-toe in front of the other. After taking nine steps forward, you must then pivot and return to your original starting point. If you use your arms for balance, or are unable to maintain your balance, you can expect to fail the test and be arrested for driving under the influence.
The horizontal nystagmus test is done by the officer will holding an object directly in front of your face to look for signs of nystagmus an involuntary twitching of the eyes commonly seen in impaired individuals. If your eyes jerk back and forth, or you are unable to follow the object, you will most likely be deemed intoxicated.
There is no reliable standard to evaluate the results of any field sobriety test. The tests are extremely subjective. Further, the officer has no way on knowing what results a specific person would achieve on the tests, even if that person had no alcohol in their system. Therefore, field sobriety tests are voluntary and can not be required of any driver. These tests are only designed to help officers identify potential DUI suspects.
If you were recently charged with drunk driving after failing one or more field sobriety tests, it is important to discuss your case with a skilled DUI defense attorney immediately.
CHEMICAL TESTS
Under the state’s Implied Consent Law, you can also be arrested for DUI if you refuse to submit a breath, blood, or urine sample to a law enforcement officer so that he or she can determine your (BAC) a process known as chemical testing. If you do not submit to these tests, you can expect to be arrested for driving under the influence. Further, if you refuse the chemical test, you can still be arrested and face an additional one year drivers license by the DMV.
Often when you are stopped for a suspected DUI violation, law enforcement will request that you agree to the use of a hand held digital breathalyser, generally called preliminary alcohol screening test (PAS). This test is not required under the state’s Implied Consent Law. You can refuse this test without any penalty either from the DMV or the court. It should be noted that the results of any hand-held digital breathalyser test given during a field sobriety test (on the side of the road) cannot be used in court to prove DUI. These road-side breathalyser tests are only used to help prove probable cause for DUI arrest in California but their results are not accurate enough to be used in court. Therefore, any results obtained from a (PAS) test do not count as an official chemical test for DUI DMV or court purposes.
Alcohol related DUI suspects can choose between the officially recognized blood or breath tests. It is important to know that despite the fact that these tests have been used for years and have scientific support, it doesn’t automatically mean that individuals will be charged or convicted for a violation of DUI law. This is because of a myriad of external factors that can affect high (BAC) result. These factors include some illnesses, the foods that were recently eaten, the presence of alcohol in the mouth, faulty testing equipment, improper procedure when operating testing equipment by law enforcement and lack of proper training of law enforcement personnel of the chemical testing equipment.
BREATH TESTING
There are several types of machines used when conducting breath tests. This is all dependant on where the person is arrested, and what equipment is installed in the police station. Breath tests aren’t always reliable, but usually a BAC of 0.08% and higher will be used as evidence that the person is intoxicated. Regardless of the machine used to conduct breath, this result is considered far less reliable than a blood test result. These machines must be frequently calibrated and maintained properly to be relied upon in a courtroom.
BLOOD TESTING
This is deemed as one of the most trustworthy methods for determining precise blood alcohol count measurements. The blood test is administered by a certified health care professional , like an M.D. or nurse at a hospital or laboratory. Despite the alleged accuracy of this chemical test for drugs and alcohol, there can be inconsistencies like tainting the evidence or other factors. An experienced lawyer will usually request a sample of this initial evidence for retesting. This is to determine inaccuracies or external influences that might have affected the positive result.
URINE TESTING
Urine tests are usually conducted for suspects of drug possession and consumption.
PENALTIES FOR DUI
Regardless of the reason for your arrest, a drunk driving conviction carries a number of penalties, including a fine, license suspension, and jail sentence , an order to attend DUI school, and/or have a vehicle ignition interlock device installed in your vehicle (a mechanism that requires you to perform a Breathalyzer each time you attempt to start your automobile).
California courts significantly increase the punishment for each subsequent DUI conviction within a ten year time period. Further, additional punishments can occur if you had a high BAC (above 0.15%) or were traveling with a passenger under the age of 14 at the time of your arrest.
Most DUI violations charged in the State of California are misdemeanor violations with a maximum punishment of one year in county jail. However, there are several violations that can be charged as felony violations and could result in a state prison sentence if convicted. If someone is injured or killed who was not the driver of the vehicle, the driver could be charged
with a felony. Additionally, if a driver had three prior DUI convictions in
aten year period, the driver could also be charged with a felony DUI violation.
POSSIBLE DEFENSES TO A DUI CHARGE
There are many possible defenses to a DUI stop, detention and arrest. The list provided below are issues that may be used in the defense of your case. However, each DUI arrest is an individual situation with facts and issues that should be analyzed by a qualified criminal defense lawyer. We will be happy to review the specific issues that may be present in your case. The possible defenses that may be available include:

1. No Probable Cause for the Stop
Before an officer can make a stop for a DUI, they must have probable cause (reasonable suspicion or belief) that you are engaged in an act of criminal activity or that you committed a traffic violation. If an officer does not have sufficient probable cause for the stop, any evidence that is obtained after the stop may be suppressed as a result. When a Judge suppresses the evidence, it means that the prosecution is not permitted to use the evidence in the attempt to prosecute you. As a result, if the evidence is suppressed, the case will usually be dismissed.
Officer must have probable cause to make a stop, detention or arrest for a DUI.

2. Faulty Breath Tests
There is no perfect chemical test used to test for the level of alcohol in a persons system. In fact, the breath tests are subject to some of the following issues:
A) Instrument Malfunction
B) Physiological Conditions (gastroesophageal reflux disease)
C) Improper use by the Police
D) Failure to observe the defendant for a sufficient time prior to the test
There are many ways to challenge a DUI arrest. The list provided, is a listing of possible issues that may be present in a DUI case. The officer must have sufficient probable cause to stop your vehicle. If the officer this necessary probable cause your charge may be dismissed even if your alcohol level was over the allowable level under California law. You may be able to challenge your chemical test results for a variety of reasons. The chemical testing must be done correctly. It is well recognized that the breathalysers that are used have a recognized error rating and are not completely accurate.

3. Mouth Alcohol
The Breath testing equipment used in California used to test (BAC) is designed to test a sample of air that comes from deep in the lungs. This air is called aveolar air. When you have residual alcohol in your mouth due to dental work trapping some alcohol, a burp or regurgitation, acid reflux or a related medical condition, the breath sample may have a false reading for a high (BAC)

4. Medical Conditions
Several medical conditions can affect the outcome of the chemical tests that are used to determine the (BAC) level in your body. These conditions include acid reflux and gastroesophageal reflux disease which can create possible mouth alcohol which will falsely raise the level of (BAC) on the tests. Diabetes and hypoglycemia can have affect the chemistry of the body which can cause the body to produce isopropyl alcohol. These medical conditions can raise significant issues of the reliability of chemical breath testing equipment used in California. These conditions can actually create false readings of a falsely high reading for (BAC)

5. Rising Blood Alcohol
Rising blood alcohol means that there is a difference between the (BAC) level when you were driving and the level that was indicated by the breath test. This can create a situation where the level of alcohol in your system was lower when you were stopped by law enforcement than when you were tested. This can happen when you have some alcohol shortly prior to beginning to drive. It takes time to absorb the alcohol into your body. When you were driving you may have been within the acceptable legal levels of (BAC). However, by the time that you complete the field sobriety tests and are transported for the breath test enough time has passed that the alcohol is now been absorbed by your body. When the chemical breath test is taken, the (BAC) level shows a high level. In a situation like this, only the level of alcohol in your system when driving is relevant, not the level show by the breath test. Therefore, a valid rising blood alcohol defense may be available to defend your case.

6. Blood testing is not always accurate when testing for alcohol
Although a blood test is considered far more accurate than a breath test for testing for the presence of alcohol in the human body, there are still issues that can create inaccuracies in the test. For example, the blood could have been stored incorrectly or the blood may have been contaminated. If it is suspected that an error was done in the testing of the blood sample, you can have the blood retested by a independent laboratory and determine if the original (BAC) finding was correct. If the independent laboratory found that the (BAC) level was lower than 0.08% the case will likely be dismissed.

7. Violations of Title 17 of the California Code of Regulations
Title 17 of the California Code of Regulations sets the necessary requirements for collecting, storing and analyzing DUI chemical tests. If these requirements are not followed, a false (BAC) level may be obtained. Specific violations can include the fact that the person who took a blood sample was not qualified to perform this task. They may not have been properly trained, licenced or certified. If a violation of Title 17 is found evidence related to the (BAC) would be excluded from evidence or the accuracy of any testing could be seriously questioned in any legal proceeding.

8. Field Sobriety Tests are of little value
California field sobriety tests (FSTs) are not accurate indicators of alcohol and/or drug impairment for a DUI finding. The FSTs are only a balance, concentration and coordination test that can be affected by many factors including: FSTs are completely subjective, a driver may be generally uncoordinated, uneven or unstable surface when taken the tests, lighting distractions, weather conditions, lack of proper footwear or no footwear and anxiety.

9. All Chemical tests have a recognized error rate
Forensic experts that testify concerning the accuracy of chemical testing for (BAC) levels in California recognized error rate in alcohol testing equipment. The error rate for such equipment can be as high as +/- 0.01 – 0.02. This is an error rate that can greatly assist the defense in a DUI trial. A good defense attorney can and will argue that the chemical test is not to be trusted or relied upon due to the error rating which is recognized by the experts. Often with the use of this error, the argument can be made that the alcohol level was actually within the legal limits allowed by California law.

10. Prosecution must prove that you were driving
Although law enforcement may be able to prove that you were intoxicated and in violation of California DUI laws, it must also be proven that you were actually driving a vehicle. This may appear to an obvious fact, but this is not always the case. For example, there are cases when the police investigate a car along a roadway and discover a person is sleeping inside. When questioned the person appears intoxicated. After the Field Sobriety Tests, the person is arrested and latter tested for (BAC) alcohol level. Even if the alcohol level is very high, the prosecution at trial would be required to prove that the driver drove the vehicle. This will be very difficult without a witness seeing the driver behind the wheel, driving the vehicle. This would present a good defense at any trial. Further, often trial would not be necessary a good defense attorney can convince the prosecutor to dismiss the charge before the need for a trial.
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