Too many drivers who get a DUI ticket think, “I’m screwed.” They suffer the penalties imposed by the court and the extra consequences, including higher insurance rates and social stigma, that follow a DUI conviction. Drivers don’t fight to avoid a harsh outcome because they don’t realize they have options.
An experienced DUI defense attorney can explain the options that drivers have to defend against a California DUI. Here are a few:
Challenge The Stop
Police officers regularly pull over drivers based on a hunch that the driver might be over the legal limit. A driver who is driving near bar time is always at risk of being pulled over, simply because the officer hopes to write a DUI ticket and believes there is a good chance that late-night drivers have been drinking.
Officers sometimes fabricate an excuse to stop a driver, or they base stops on a misunderstanding of the law. They claim a driver was “weaving” when the driver gradually changed position within a lane, or they stop a driver for failing to signal a turn when no signal was required.
Officers generally need to observe a traffic violation or have a reasonable suspicion that a driver has violated the law before making a traffic stop. When officers make an unlawful stop, they violate the driver’s constitutional right to be free from unreasonable seizures.
Any evidence that is gathered after an unlawful stop cannot be used against the driver. Challenging the stop is one of the most fruitful defense options.
Challenge The Arrest
Officers sometimes base arrests on facts that can be challenged in court. The officer may claim that the driver’s speech was slurred, but the officer’s bodycam will show that the driver’s speech was normal. The officer may say that the driver failed field sobriety tests, but the squad camera may show that the driver’s performance was acceptable, or that the officer gave incorrect instructions for performing the tests.
Arrests must be based on probable cause that the driver violated the law. When the officer cannot substantiate that provable facts supported an objectively reasonable belief that the driver probably violated California’s DUI law, any evidence obtained after the arrest cannot be used against the driver. Challenging the arrest is therefore another strong defense option in many cases.
Challenge The Test Results
Many drivers think that a breath test result can never be challenged. In fact, skilled DUI defense attorneys understand that breath tests are often flawed. Inaccurate test results can result from:
- Failing to assure that the machine is not measuring residual alcohol in the mouth rather than deep lung air
- Improper operation of the testing device
- Operation of the testing device by an officer who was not certified to conduct the test
- A medical condition (such as diabetes) that affects breath test results
- Using a breath test device that has not been recently certified as accurate
- Using a breath test device that was certified by a technician who was not qualified to certify it as accurate
- An impermissibly long delay between the arrest and administration of the test
When blood is tested, challenges are usually focused on the failure to refrigerate and preserve the blood sample before testing, as well as possible lab error (such as misidentifying the test sample).
Blood Alcohol Curve Defense
In some cases, a defense is based on the blood alcohol curve. It takes time for alcohol to move from the stomach to the bloodstream. Alcohol cannot affect the brain until it enters a driver’s blood.
If a driver is pulled over shortly after finishing a drink and is not tested until time has passed, the driver’s blood alcohol concentration (BAC) might be lower at the time of driving than it is at the time the test is taken. The BAC at the time of driving is what counts. When the facts support it, the blood alcohol curve defense can mean the difference between a conviction and an acquittal.
Other Trial Options
The blood alcohol curve defense and challenges to test results are usually raised at the trial of a DUI charge. Other potential defenses at trial include:
- The person who was arrested was not the driver
- Witness testimony proves that the driver had not been drinking
- Witness testimony proves that the driver did not have enough drinks to reach the BAC shown on the test results
- Video evidence shows that the driver was perfectly sober
- Procedural errors require dismissal of the charge
Every defense is based on the facts of the case. Creative DUI lawyers tailor the defense to the facts that the prosecutor can or cannot prove.
In many cases, the process of plea bargaining can lead to a conviction of a traffic offense that is less serious than a DUI. In California, a “wet reckless” is a common substitute for a DUI conviction.
A “wet reckless” usually have less severe consequences for employment and driving privileges than a DUI. Unlike a DUI, a wet reckless conviction does not require an automatic license suspension. If the driver is later arrested in another state, a “wet reckless” might not count as a prior offense.
Other negotiated options might also be available. A California DUI defense lawyer will determine whether other options might avoid a conviction of any offense, and will advise drivers to consider a plea bargain only if they have no better option. In all cases, it is up to the driver to balance risks versus potential rewards after considering the advice provided by their experienced DUI defense attorney.