Fighting a DUI charge is far from hopeless.  We will carefully examine the circumstances of the traffic stop and your arrest and the testing of your blood, breath or urine, to determine what defenses may exist and the strength of those defenses.  There are literally dozens of ways in which the evidence against you may be attacked.  Following are just some of them.

1.  No Justification for Traffic Stop

Police officers cannot simply stop drivers arbitrarily, but must have made observations raising a reasonable suspicion of a traffic violation.  Otherwise, the traffic stop and subsequent police investigation violate the driver's constitutional rights.  See Whren v. United States, 517 U.S. 806 (1996).  In California, that means that the patrol officer must have observed what he reasonably believed to be a  violation of the California Vehicle Code.  See Mercer v. Department of Motor Vehicles, 53 Cal.3d 753 (1991); Taylor v. Department of Motor Vehicles, 36 Cal. App. 4th 812 (1995).  Your attorney will decide whether you have grounds to request a "suppression hearing" under California Penal Code § 1538.5 to challenge the police officer's reasons for making the initial traffic stop. If the police officer cannot articulate specific facts showing a traffic violation or reasonable suspicion of the commission of a crime, the case against you may be dismissed.

2.  No Probable Cause for Arrest

Even if the traffic stop was justified, the police officer is still required to have had "probable cause" for arresting you for suspicion of driving under the influence, and taking you to the station for the breathalyzer or blood test.  If your attorney determines the circumstances of the roadside investigation did not provide "probable cause" for your arrest, your attorney will ask for a "suppression hearing" under California Penal Code § 1538.5, and will attempt to convince the judge that the chemical evidence against you should be suppressed.  If it is, the case may be dismissed.

3.  There Are Non-DUI Explanations For The Way You Drove

The arresting officer will no doubt testify that he/she observed you "weaving" across lanes or otherwise driving in a "drunken" manner.  However, as numerous studies have pointed out, the main causes of such driving behavior are non-DUI factors such as fatigue, eating, cell-phone use, medical conditions, or other distractions.  Your attorney will present any available explanations to rebut the officer's opinion that you were DUI.

4.  There Are Non-DUI Explanations For Your Appearance

The arresting officer will probably report that he/she observed certain signs of intoxication in the way you looked or acted, including your flushed or sweaty face, your bloodshot eyes, and your slurred or uneven speech.  In fact, it's standard operating procedure for most traffic officers to describe DUI suspects in such terms – and it does not necessarily mean anything.  Even if the officer did observe such things at the time you were stopped, there are numerous non-DUI explanations, including fatigue after a long day causing you to be slow to react, hay fever and allergies or sleeplessness causing bloodshot eyes, medical conditions such a diabetes causing unsteadiness, and nervousness and embarrassment causing flushing or uneven speech.  Your attorney will argue that these factors, and not intoxication, caused the "symptoms" observed by the officer.

5.  The Smell of Alcohol on Your Breath Does Not Prove DUI

The police officer will probably say he/she knew you were drunk because of a strong smell of alcohol on your breath.  But, your attorney will be able to show the jury that such an odor proves nothing.  In fact, alcohol itself (ethanol) has no odor.  It is the byproducts of the drink that have the odor.  Smelling "alcohol" on someone's breath at most means the subject had an alcoholic drink (some non-alcoholic drinks produce the same odor).  The odor says nothing about the quantity of alcohol that was imbibed.

6. The Officer Failed To Inform You Of Your Rights

Upon arrest, the law enforcement officer must inform you of your Miranda rights (i.e., right to an attorney, right to remain silent, etc.) before questioning you in an effort to elicit incriminating statements. (Note, this right generally does not attach before your arrest, during the officer's preliminary roadside investigation.)  If the officer asked you questions after placing you in custody, without first informing you of your rights, your attorney will ask the court to exclude from evidence any statements that you made.

7.  "Non-Standard" Roadside Sobriety Tests Lack Scientific Validity

All roadside tests are flawed, to various degrees.  The National Highway Traffic Safety Administration (NHTSA) has approved only three roadside DUI tests (the one-leg-stand, horizontal gaze nystagmus, and walk-and-turn).  Yet, law enforcement officers continue to use a variety of other tests that not even the NHTSA recommends.  If such non-standardized tests were used, your attorney can easily attack their validity. 

8.  "Standardized" Roadside Sobriety Tests Were Improperly Conducted

The NHTSA states that to produce meaningful results, the standardized roadside DUI sobriety tests it approves must be given under carefully controlled conditions.  However, in the real world, the tests are given by officers along random highways, on a variety of surfaces, under varying lighting conditions, with traffic whizzing by, to suspects of all ages and physical conditions.  Under these roadside conditions, the tests can be difficult for anyone to "pass" -- regardless of whether they have been drinking.  Your attorney will attack the conduct of the tests, to show that under the circumstances the results are unreliable.

9.  The Roadside Sobriety Tests, Even If Conducted Properly, Cannot Prove DUI Beyond A "Reasonable" Doubt

Even if the roadside sobriety tests were those standardized tests approved by the NHTSA (one-leg-stand, horizontal gaze nystagmus, and walk-and-turn), and even if the tests were conducted properly, there is still a good argument that their results cannot prove intoxication beyond a reasonable doubt.  The NHTSA states that a 1981 study showed that, based on the results of the tests, officers correctly determined whether the subject had a blood-alcohol-concentration of 0.10% or higher as follows:

• Horizontal Gaze Nystagmus (HGN) -- 77% of the time;
• Walk-and-Turn (WAT)  -- 68% of the time;
• One-Leg Stand (OLS)  -- 65% of the time.

In other words, in approximately a third of the cases, the officer was prepared to swear falsely that the subject was DUI. Your attorney will attempt to convince the jury that tests with such proven inaccuracies simply are not enough to convict "beyond a reasonable doubt."

10.  The Chemical Test Was Administered More Than Three Hours After the Traffic Stop

Under relevant law,  the samples taken for the post-arrest chemical test  – blood, breath or urine – should have been taken no more than three hours after the traffic stop.  Otherwise, there is no presumption that the results of the test accurately portray your BAC at the time that you were driving.  This is because Vehicle Code section 23152(b) (the .08% per se law) states that it is a rebuttable presumption that the BAC show by chemical tests within three hours of driving was the BAC at the time of driving.  A test taken outside of the
three-hour presumption period can be considered by the court; however, it must do so with testimony from
a forensic toxicologist applying retrograde analysis establishing that the BAC was over 0.08% at the time of driving.  Accordingly, your attorney will carefully examine the police report and other records showing when the stop took place and when the chemical test was administered.  If, for any reason, there was a delay of more than three hours, your attorney will bring a motion to suppress the evidence collected, which, if successful, may dispose of the case. 

Note:  Even without the chemical evidence, the prosecution can still rely on Vehicle Code section 23152(a), if there is evidence by police witnesses that the driver was impaired by alcohol or drugs.  However, unless that evidence is strong, loss of the per se (b) count may convince the prosecution to drop the case.

11.  The Officer Failed to Observe You For Fifteen Minutes Before Administering the Breathalyzer Test

Breathalyzer-type machines attempt to determine the subject's blood alcohol concentration (BAC) by testing the breath.  (Click here for a list of NHSA-approved machines .)  The premise underlying the breathalyzer test is that the machine can measure the alcohol concentration of the breath and extrapolate from that to determine the subject's blood alcohol concentration (BAC).  One of the many things that can render this extrapolation inaccurate is alcohol in the mouth.  Burping or belching is likely to bring alcohol from the stomach up to the mouth, skewing the results.  Therefore, before administering a breath test, officers are required to determine by careful observation that the DUI suspect does not burp, belch or otherwise regurgitate anything from the stomach for the fifteen minutes preceding the test.  Officers are often careless about this part of the protocol.  If the officer failed to observe you for the entire fifteen minutes before administering the test, your attorney will try to get the results disregarded on that ground.

12.  The Breathalyzer Machine Usage, Test and Maintenance Records Demonstrate that it Was Not Properly Maintained

The chemical test most likely to have been administered to the arrested driver is the breath test, using a device such as the Intoxilyzer 5000 "breathalyzer" machine.  As explained elsewhere, measuring the breath to determine blood-alcohol concentration is inherently an inaccurate method of testing the BAC, as many factors can influence the breath-to-blood alcohol concentration ratio.  However, for the machine to produce a reading of even minimal accuracy, the machine must be properly maintained.  Under Title 17 and other application regulations, the machine must be regularly maintained, tested and repaired, with data logs maintained by the custodian of the machine.  If your lawyer discovers any information casting doubt on the proper maintenance of the machine used to test your breath for BAC, your lawyer will bring a motion to supress the test results.  

13.  Heartburn or Acid Reflux Caused A False High BAC Reading

The breathalyzer machine assumes it is measuring air that obtains its alcohol content from the deep alveoli region of the lungs.  The mathematical algorithm the machine uses to extrapolate the subject's BAC is based on this assumption.  If the subject is suffering from heartburn, acid reflux or gastroesophageal reflux disease (GERD), small amounts of alcohol can be regurgitated from the stomach to the mouth, increasing the alcohol content of the air measured by the machine.  This causes a higher, false reading of the subject BAC.  The reflux does not need to be from a chronic condition.  As drinking and heartburn-type conditions—caused by spicy food, greasy food, too much food, etc.—often go together, your attorney will no doubt question you about this possibility, so that he can present this argument to the jury.

14.  Breathalyzer Mistook Other Substances For Alcohol

It is established that breathalyzer machines frequently mistake certain non-alcoholic compounds for ethanol, reporting a false high blood alcohol concentration (BAC).  Your attorney will investigate the type of machine that was used; and will question you about what substances, found in certain foods, mouthwash, toothpaste, or in certain environments, you may have had on your breath at the time of arrest.

15.  Correct Procedures Were Not Followed In Collecting Your Blood

California Code of Regulation, Title 17, Section 1219.1 regulates the method of taking blood for the purpose of forensic analysis to determine blood alcohol concentration (BAC).  Among other things, blood must be collected by an authorized person, in a specified manner.  It must be mixed with an anticoagulant and a preservative; and sufficient blood must be collected to permit a second sample to be stored for later examination.  Your attorney will be able to scrutinize the manner in which the blood was collected, stored, and tested.  Your attorney will want to discover how long the blood was stored before being tested (samples are often saved up and processed in batches days after they were collected).  If there are any irregularities in the process, your attorney will try to get the test results thrown out.

16.  The Blood Sample Was Contaminated Or Deteriorated Before Testing

The reason Section 1219.1 requires that a preservative be added to a blood sample that is going to be forensically analyzed is that otherwise bacterial contamination can cause the deterioration of the blood, affecting the results of the analysis.  Among other things, fermentation can increase the blood alcohol content of the sample.  Accordingly, your attorney will probably want to have the second, stored vial of blood tested by an independent laboratory for a number of things, including the BAC and the level of sodium chloride preservative.  If the level of preservative is not sufficient, your attorney will argue that the entire blood test should be thrown out as unreliable.

17.  Your BAC Rose To .08% After You Were Stopped

If the traffic stop occurred soon after you ingested alcoholic beverages, your blood alcohol level was still rising.  Thus, your blood alcohol concentration (BAC) may well have been below .08% at the time of the stop even though it tested above .08% at the police station or testing center.  Only the BAC at the time you were stopped is relevant to the charged offense.  Therefore, in such a situation, your lawyer will want to examine the timing carefully, to see if it is possible to show that at the time of the traffic stop, your BAC was probably below the legal limit.

18.  Diabetes May Produce False, High BAC Breathalyzer Readings

A diabetic is unable to regulate blood sugar properly, and swings from high to low states.  Low blood sugar (hypoglycemia) causes ketoacidosis, which causes the production of acetone.  Acetone will be detected by the Breathalyzer as alcohol, producing false, high BAC readings.  If you suffer from diabetes, your attorney will present this defense, to show that the chemical test results are unreliable in your case.

19.  Low Carb Diets Can Produce False, High BAC Readings

A low carbohydrate, high-protein diet such as the Atkins Diet puts the body into a state of ketosis which burns body fat.  If the subject ingests carbohydrates including starches, sugars and alcoholic drinks during ketosis, the body produces isopropyl alcohol.  Most breathalyzer machines will falsely detect the isopropyl alcohol as ethanol alcohol, reporting a false, high blood alcohol concentration (BAC).  Your attorney should be told if you were on any kind of low carb diet at the time of the traffic stop.

20.  Radio Frequency Interference (RFI) Can Interfere With BAC Tests

Radio frequency interference (RFI) is produced by countless sources, including police radios, radar devices, and computers.  It has been established that RFI can interfere with the electronic circuitry of many of the blood and breath alcohol testing machines used today, resulting in false high blood alcohol concentration (BAC) readings.