• JC Serrano

Suspected of DUI? Here Are Possible Defenses

Updated: Jun 5

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When you are detained for DUI in California, you will have to fight the DMV's effort to revoke your driver's license as well as criminal charges filed by prosecutors. The results of a conviction on these charges are determined by several factors, including whether you have ever been convicted of a DUI or have any criminal convictions on your record. However, with the assistance of a skilled DUI Attorney, several DUI fines may be reduced or even avoided. It is important to speak with a DUI Attorney as soon as possible after being arrested so that your rights can be asserted.


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We'll be discussing possible defenses that your DUI Attorney might use for your DUI case. If you haven't been arrested, you can also take some advice on what to do during the moments you are under scrutiny.


Defense #1: Disproving PAS breath test


Almost all DUIs in California are prosecuted under one of two statutes: 23152(b), which states that you had a blood alcohol content (BAC).08 percent or higher while driving, and 23152(c), which states that you had a BAC of.08 percent or higher while driving. The most popular of these is 23152(b), and the most common way to measure your BAC is with a breath test system like a PAS.


Your breath test results could seem conclusive—after all, they "prove" how much alcohol was in your bloodstream. However, they aren't always right. There are many reasons why you could get a false positive that "proves" you were over the limit when you weren't. The equipment can be unreliable. The officers administering the test can make errors, and there are many other reasons you might get a false positive that "proves" you were over the limit when you weren't.


The PAS breath test results can never be taken at face value by a good DUI lawyer. Defending your DUI case by questioning the validity of the test results can be quite effective. It's possible that a key piece of evidence against you would be thrown out of the case. It could even result in the charges against you being dismissed.


What makes the PAS different from other breath tests?


PAS stands for Preliminary Alcohol Screening, and it's used at traffic stops to determine whether or not anyone is driving under the influence. The PAS employs a lightweight, compact breath test system that requires little training for officers to operate. It's usually done before you're arrested, usually within minutes of being pulled over. Officers can use the PAS results to determine whether or not to arrest you for DUI.


PAS examinations, on the other hand, are notoriously inaccurate. They have a large margin of error from one sample to the next, unlike the breath screening devices used in police stations and crime laboratories. They're often vulnerable to being deceived by traces of alcohol left in the mouth. Many portable PAS devices lack a "slope detector," which helps screen out this trace alcohol in other breath test machines.


No matter what product was used, the breath test findings may be challenged. However, if you were tested on the side of the road prior to or after your detention, the gadget was most likely a PAS, which is especially vulnerable to challenge.


What's the big deal about the breath test result?


Prosecutors have the option of seeking a DUI arrest with or without a breath test. However, if they have a test that shows the BAC was over the legal limit, which in most situations is.08 percent, it would be much easier to prosecute you. If they don't have this crucial proof (or some equivalent examination, such as a blood test), they'll have to show that the alcohol you drank made you physically or mentally ill. They will need to prove that you were intoxicated at all in some situations.


This is why the results of the tests are so important. Whether or not the prosecutor has breath test evidence will determine whether you are convicted or not.


What if I was actually inebriated? Is it even possible for me to refuse the breath test?


Yes, indeed. It's unusual for a driver arrested for DUI to be completely sober, but it does happen. In certain instances, however, the driver had consumed alcohol—but not to the extent that he or she was a threat to others. It's not easy to reach the "legal cap".08 percent BAC. To surpass it, a grown man may need three or more drinks, whereas a woman may need two or more. You may have even more drinks and still be legal to drive if you drink slowly overtime or on an empty stomach.

You don't have to show you didn't drink at all in a DUI situation. You simply need to show that your blood alcohol concentration (BAC) was not.08 percent or higher while driving. You don't even have to prove it; all you have to do is raise doubt on whether you were over.08 percent or not.

Even though they were drinking and the test resulted in a number higher than.08 percent, several DUI defendants win their cases. A victory can mean a victory in court, a charge being dismissed without a trial, or a charge being reduced to something less serious than DUI. The aim is to keep your license, escape prison time, and keep the cost of your DUI as low as possible.


Defense #2:Disproving "Field Sobriety Tests"


FSTs (field sobriety tests) have become a common part of the DUI investigation process. Officers use a number of physical tests to assess whether you are intoxicated, such as standing on one knee, walking a narrow line, or tracking an object with your eyes. These assessments aren't always accurate, and they're not meant to help you prove your sobriety. They can, however, be used against you as evidence at your trial, and they can be used as grounds for detention.


Fortunately, the flaws with FSTs are well-documented, and their validity can be questioned. This could help you win your DUI case in several situations.


Why Are FSTs Actually Used?


FSTs seem to serve a single purpose: they are basic checks that officers use to screen for symptoms of intoxication or drug use. You'll be let go if you "pass," but you'll almost certainly be arrested if you "fail." Isn't this a fair deal?


FSTs, in fact, is one-sided. If an officer asks you to conduct the FSTs, it's either he or she already thinks you're drunk and is searching for a way to show it. There's nothing you can do to "pass" at this stage because the exams are difficult and everybody can make a mistake at some point. If you're nervous when standing on one leg, for example, it's not because standing on one leg is difficult; it's because you've been drinking, according to the cop. You'll be told you couldn't obey orders if you try to follow the officer's finger with your head instead of your feet, even if the instructions were given instantly, on a windy night, alongside a busy highway.


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It's not that FSTs aren't scientifically sound. The officers must adhere to such laws, and the examinations must be conducted in a consistent manner. They have the potential to show drunken actions if done correctly. However, they aren't given to you in a way that allows you to demonstrate your sobriety. Any error counts against you, and the officer who determines whether you "failed" is the same officer who accused you of being inebriated in the first place.


What are the drawbacks of FSTs?


The following are the key issues with FSTs:

  • They are primarily physical agility assessments. A fit and an agile individual would do better on the tests than someone who is out of shape or even someone who is perfectly safe but not athletic. This is true in both sobriety and intoxication.

  • They are more concerned with your ability to obey orders than with your mental state. Since FSTs require you to perform unnatural movements and (basically) exercises you have never performed before, the most important requirement for passing is that you hear, understand, and follow the officer's orders. It can be held against you if you make a mistake, misinterpret something, or ask for clarification.

  • They are carried out in a high-stress setting. Half of six colleagues would be unable to stand on one leg without losing their balance. Do it at 2 a.m. on gravel with a spotlight shining in your face from a man with a pistol. When you throw in a passing semi-truck, you've got a recipe for disaster.

  • There isn't a grading system in place. You lose if you excel at one FST but fail at another. You fail if you complete four FSTs but fail the final one. There's no way to prove your sobriety or accumulate "successes." It's just a means of gathering evidence against you.

The best recommendation for most drivers accused of DUI in California is to respectfully refuse to take the field sobriety tests. You are not expected to conduct them, unlike in some other nations. You would almost certainly be arrested for DUI if you refuse, but the officer was most likely planning to arrest you anyway. You're giving him less proof to work with this way.


How can I refute the use of FSTs in my DUI case?


FSTs may be defeated in one of two ways: by filing a motion to remove them entirely as evidence or by simply discrediting them.

  1. FSTs are being suppressed by a motion. Wherever feasible, this is the best way. To get the FSTs suppressed, a judge must rule that they cannot be used as evidence at all. They're basically off the table. However, this only works if you can prove that the officer did not perform the tests properly in the first place. FSTs, for example, must be done on the flat, dry ground; if the defense counsel takes photographs of the location where you were pulled over, demonstrating that it is not level or that it is littered or otherwise obstructed, the judge may order the FSTs to be suppressed. The judge could also remove evidence that the officers did not adequately describe or perform the tests, such as footage of the arrest or statements in the officers' own report.

  2. The FSTs are being falsified. This is the most popular route. The FSTs were conducted "correctly" in many instances, but they aren't solid evidence—for example, you fell or failed in a way that even a sober person might have failed. In this situation, the DUI Attorney will exert pressure on the prosecution by implying that the FSTs will not stand up in court or by outright attacking them in court. FSTs alone may not have a lot of clout with juries.

Many DUI cases never make it to court, so targeting the FSTs is a good way to start. A good DUI lawyer will whittle down the facts, starting with the breath test or blood sample and then moving on to the field sobriety test (FST). Prosecutors will also make a bargain rather than taking a case to court if they don't have solid evidence.


Is "Drinking and Driving" an Appropriate DUI Defense?


The majority of DUI arrests take place shortly after you get behind the wheel, either at a DUI roadblock, the scene of a DUI crash, or during a traffic stop. If the officer learns you are intoxicated or on drugs under these cases, it is clear that you were driving under the influence. But what if the police just question you after you've been arrested? In these situations, "drinking and driving" can be used as a defense to a DUI charge. Consider one of our prescreened California Lawyers in your California Attorney Search.


What is the protection for drinking and driving?


The phrase "drinking after driving" implies that you were sober or under the legal limit while you were driving. You didn't start drinking until after you got out of the taxi. You may have been inebriated when police discovered you, but you were not inebriated while driving.


This defense is based on two key facts:

  1. It is only illegal to drive while inebriated. Both of California's DUI rules, 23152(b), just make it illegal to drive while inebriated. It is legal to be inebriated at home, in a parked vehicle, or even on the side of the road (for the purposes of DUI). It is not a DUI if you drink after you have stopped the engine.

  2. Officers have no way of knowing when you began drinking. If police respond to an accident call 15 minutes later and discover you intoxicated or inebriated, they would naturally suspect a DUI. However, this may not be the case. They have no way of knowing whether you were drunk before the crash or if you began drinking again.


Will I face repercussions if I confess to drinking?


It depends on the situation. For example, in Example #3 above, the man may be charged with an Open Container violation for having a flask of whiskey in his car or even Public Drunkenness for drinking on the side of the road. And, even if he didn't realize he struck anyone, the man in Example #1 might be accused of a hit-and-run crime that didn't involve alcohol. However, none of these charges are as serious as a DUI or a DUI Hit and Run.


Underage drinkers are subject to the same rules. If a driver under the age of 21 admits to drinking following an accident or traffic collision, they will face severe consequences. However, the consequences of driving under the influence and under the age of 21 are much more serious.


To put it another way, the "drinking after driving" defense means you're willing to risk a lesser penalty in exchange for avoiding a life-altering DUI.


Is this a viable defense for a DUI involving drugs?


Yes, indeed. The same idea applies to DUI charges involving alcohol, painkillers, or any other substance (legal or illegal): if you can prove you weren't under the influence while driving, you might have a good defense.


However, using the protection of "drugs after driving" comes with the caveat that you must confess to using drugs. Even if you beat your DUI, if you used an illicit drug like crack, you would almost certainly face drug charges. However, this is almost always preferable to a drug DUI fee.


What is the strength of this defense? What proof do I require?


Whether or not these defense works is almost entirely determined by the proof you can present. In general, police (and prosecutors) would presume you were driving under the influence if you were found intoxicated immediately after a traffic incident. To make a case for the contrary, you'll need evidence.


The following are some examples of evidence:

  • Your breath or blood test results indicate a low blood alcohol content, which is consistent with only recently beginning to drink.

  • Witnesses noticed when you started drinking or saw that you weren't inebriated when you first got out of the car (you'll need strangers for this).