As straight forward as Driving Under the Influence cases may seem, they are complicated and messy but can be defended in various ways. CA Vehicle Code 23152-23229 states that a person is guilty of Driving Under the Influence (DUI) if they are found driving with a Blood Alcohol Content (BAC) of.08% or higher or if they were driving while under the influence of alcohol or drugs. Many of the arrests occur during traffic stops or checkpoints, but in both instances the officer must adhere to certain procedures in order to have a valid arrest for a DUI. These criminal cases should not be confused with DMV hearings, which is an entirely different issue unto itself.
There are two elements for a DUI as stated in VC 23152:
1. The person must have been driving.
The officer must see the person driving in order to establish a reasonable suspicion or probable cause that the driver is under the influence. If the car is parked with keys in the ignition, and the driver is intoxicated, the officer may infer that the person was driving under the influence, which could lead to an arrest and subsequent charge for a DUI offense.
2. The BAC must be.08% or higher or the driver was under the influence of alcohol or drugs.
Before an officer stops a driver, the officer must have objective probable cause gathered through his or her own personal knowledge and sensory perception that a crime is being committed by observing and gathering evidence through the facts and circumstances of the situation. Here, the police officer must observe and make a judgment on whether the driver was above the BAC limit allowed.
Defenses to DUIs
A good DUI defense attorney is going to know what evidence and procedure that the prosecutor needs in order to convict.
1. The officer did not follow the regulated procedures in testing for a DUI by not calibrating the breathalyzer or following typical police protocol.
The defense lawyer should be asking for the testing equipment maintenance records and calibration history that was used on the defendant during the stop, in order to see if all the equipment was up to date. If the equipment was not up to date then there is a defense that the equipment used was malfunctioning.
2. The high BAC level could be attributed to medical conditions, such as GERD (acid reflux) or heartburn, which can trick the breathalyzer to showing a higher BAC level.
If the defendant actually has GERD, acid reflux, a physician’s note is required to acknowledge the medical condition. According to WedMD, http://www.webmd.com/heartburn-gerd/guide/what-is-acid-reflux-disease, acid reflux is a backward flow of the stomach’s acid into the throat thereby creating “mouth alcohol,” which shows as a higher BAC level on the breathalyzer.
3. The officer lacked objective probable cause.
As stated before, the police officer must base probable cause on their own sensory knowledge and have personally observed the person driving while under the influence for a sufficient amount of time in order to gain enough evidence for the traffic stop. An officer must write down all his observations for probable cause in a police report, and if there is any discrepancy a good defense attorney will point the flaw out.
4. Field Sobriety Tests (FST) are unreliable in determining a person’s alcohol level.
These tests are hard for a sober person and can be attributed to a person being clumsy or just having a lack of balance due to some physical condition. It must be noted that FST’s are a factor in determining whether the driver was under the influence not the deciding element.