|
Search for California DUI
Attorneys by County.
Gueneville DUI Lawyers
- Dave Schwartz:
1
OBSERVED DRIVING
DRIVING IS A KEY ELEMENT OF THE PROSECUTION'S AND DMV'S DUI CASE AGAINST YOU. IF THE GOVERNMENT CANNOT PROVE BEYOND A REASONABLE DOUBT (OR AT DMV THE STANDARD OF PROOF IS "MORE LIKELY THAN NOT") THAT YOU WERE DRIVING, THEN YOUR CASE MAY BE A WINNER.
IF SOMEONE ELSE DROVE, NOT YOU, THEN THIS DEFENSE IS MUCH STRONGER IF YOU AND THE ACTUAL DRIVER BOTH STATED AT THE TIME OF INITIAL CONTACT WITH LAW ENFORCEMENT THAT YOU WERE NOT THE DRIVER. NOTE THAT THIS IS NOT A NOVEL DEFENSE AND THE PROSECUTION WILL OFTEN FIGHT HARD AGAINST IT BECAUSE THEY KNOW IT IS UNLIKELY ANYONE ELSE AT THE SCENE WAS TESTED SO IF THEY LOSE YOU THEN THEY LOSE THE WHOLE CASE. NOTE ALSO THAT EVEN THOUGH IT MAY BE THAT NO OFFICER SAW YOU DRIVING, THE PROSECUTION AND THE DMV MAY INTRODUCE CIRCUMSTANTIAL EVIDENCE OF YOUR DRIVING, TYPICALLY FACTS SUCH AS YOU WERE FOUND IN THE DRIVER'S SEAT, THE VEHICLE IS REGISTERED TO YOU, THE KEYS WERE IN YOUR POCKET, THE VEHICLE HOOD WAS WARM TO THE TOUCH, THE SEAT WAS ADJUSTED FOR YOUR HEIGHT, YOUR OWN ADMISSION TO DRIVING, ETC...
IF YOU DROVE BUT HAD BEEN PARKED OR STOPPED FOR A LONG TIME (MORE THAN A COUPLE HOURS) BEFORE LAW ENFORCEMENT ARRIVED, THEN ADDITIONAL ISSUES MAY COME INTO PLAY. (SEE FOR EXAMPLE "3-HOUR PRESUMPTION" BELOW WHERE THE GOVERNMENT MUST ESTABLISH A TIME OF DRIVING).
2
INITIAL DETENTION
POLICE OFFICERS MUST HAVE A WARRANT, OR PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN OR IS BEING COMMITTED, OR SOME OTHER COMPELLING REASON TO STOP OR DETAIN YOU AND INTERFERE WITH YOUR LIBERTY.
BOTH COURT AND DMV CASES WILL BE DISMISSED IF THE OFFICER CANNOT JUSTIFY THE ORIGINAL STOP OR DETENTION, EVEN IF HE/SHE BELIEVED IN GOOD FAITH THAT THERE WAS A JUSTIFIABLE REASON TO STOP YOU. THIS DEFENSE ARISES IF YOU WERE ACTUALLY DOING NOTHING WRONG WHEN YOU WERE STOPPED OR DETAINED AND/OR THE OFFICER HAD NO REASON TO BELIEVE YOU HAD BEEN DRIVING UNDER THE INFLUENCE.
3
RISING BLOOD ALCOHOL
IF YOUR BODY IS STILL ABSORBING ALCOHOL AT THE TIME THAT THE BLOOD ALCOHOL TESTING IS ADMINISTERED TO YOU, THEN THE TEST RESULTS WILL NOT BE AN ACCURATE REFLECTION OF YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. THIS DEFENSE USUALLY ARISES WHEN YOU DRANK ALCOHOL JUST PRIOR TO DRIVING.
THIS DEFENSE IS STRONGEST WHEN YOUR TEST RESULTS SHOW LOW BLOOD ALCOHOL LEVELS AND IF YOU OFFERED A CREDIBLE DRINKING HISTORY AT THE TIME YOU WERE INTERVIEWED BY THE POLICE PRIOR TO ARREST.
4
DRINKING AFTER DRIVING
IF YOU CONSUMED ALCOHOL SUBSEQUENT TO DRIVING AND PRIOR TO ARREST, THEN THE POLICE OFFICER'S OBSERVATIONS OF YOUR BEHAVIOR LATER, AND THE ALCOHOL TEST RESULTS LATER, CANNOT BE AN ACCURATE REFLECTION OF YOUR CONDITION AND YOUR BODY'S ALCOHOL LEVEL AT THE TIME OF DRIVING. THIS PRESENTS OFTEN FATAL PROOF PROBLEMS FOR THE PROSECUTOR AND THE DMV.
THIS DEFENSE IS STRONGEST WHEN YOUR TEST RESULTS SHOW LOW BLOOD ALCOHOL LEVELS AND/OR IF YOU OFFERED A CREDIBLE DRINKING HISTORY AT THE TIME YOU WERE INTERVIEWED BY THE POLICE, AND IF THERE ARE DISINTERESTED WITNESSES TO THE AFTER-DRIVING CONSUMPTION.
5
15-MINUTE OBSERVATION & THE BREATH MACHINE
OFFICER TESTING OF YOUR ALCOHOL LEVELS MUST COMPLY WITH STATE RULES (CALLED "TITLE 17") WHICH LEGITIMIZE A NON-DOCTOR (IN OTHER WORDS, AN OFFICER) ENGAGING MEDICAL PROCEDURES TO DETERMINE THE AMOUNT OF ALCOHOL IN YOUR BODY. IN ORDER FOR TEST RESULTS TO BE VALID IN COURT OR DMV, CERTAIN PROCEDURAL CONDITIONS MUST BE MET.
ONE OF THESE CONDITIONS IS THAT, IF THE TESTS TO BE USED AGAINST YOU ARE BREATH TESTS, THEN YOU MUST BE CONTINUOUSLY OBSERVED FOR 15 MINUTES IMMEDIATELY PRIOR TO THE TEST BEING TAKEN TO ENSURE THAT YOU DID NOT BELCH, REGURGITATE, EAT OR DRINK, OR OTHERWISE HAVE MOUTH ALCOHOL PRESENT WHICH WOULD CAUSE THE TESTS TO PRODUCE FALSELY HIGH RESULTS. THE BEST DEFENSE HERE IS WHEN THE OFFICER ARRIVES AT A CERTAIN TIME AND CERTAIN BREATH TESTS ARE ADMINISTERED TO YOU PRIOR TO THE 15-MINUTE WAITING PERIOD.
THERE ARE ADDITIONAL REGULATIONS WHICH REQUIRE THAT BREATH MACHINES ARE CALIBRATED AT REGULAR INTERVALS AND TEST WITHIN CERTAIN ACCEPTABLE RANGES OF ACCURACY. WE CAN SUBPOENA AND REVIEW THESE RECORDS FOR POSSIBLE DEFENSES, PARTICULARLY IF YOUR TEST RESULTS ARE RELATIVELY LOW.
6
BLOOD TESTS
AS DISCUSSED ABOVE REGARDING TITLE 17, STATE REGULATIONS REQUIRE THAT ONLY CERTAIN LICENSED OR QUALIFIED INDIVIDUALS MAY DRAW BLOOD FOR TESTING. THESE INDIVIDUALS ARE TYPICALLY PHLEBOTOMISTS, NURSES, PARAMEDICS AND OTHER TECHNICIANS. IF THE POLICE REPORT INDICATES THAT THE INDIVIDUAL WHO DREW YOUR BLOOD FOR TESTING WAS NOT PROPERLY CERTIFIED, THEN THE TEST RESULTS MAY NOT BE USED AGAINST YOU IN COURT OR AT DMV.
IF YOU TOOK A BLOOD TEST DURING THE ARREST PROCESS, THE RESULTS MAY SHOW A PROBLEM IDENTIFIED ON THE REPORT BY THE DEPARTMENT OF JUSTICE LABORATORY. IN ADDITION, BLOOD TEST SPECIMENS ARE RETAINED BY THE GOVERNMENT FOR RETESTING BY YOU AND YOUR LAWYER AT AN INDEPENDENT LAB IF DESIRED. ALTHOUGH THIS TYPICALLY INVOLVES ADDITIONAL EXPENSE TO YOU, RETESTING CAN CONFIRM BLOOD TYPE AND DNA IF THERE IS A QUESTION WHETHER THE SAMPLE ORIGINALLY TESTED IS IN FACT YOURS. ALSO, RETESTING CAN OFTEN LOWER THE RESULT NUMBER BY .01 TO .03 WHICH MAY DROP YOUR RESULT BELOW .08, OR MAY PROVIDE ADDITIONAL ASSISTANCE IN PLEA BARGAINING EFFORTS TO OBTAIN A WET RECKLESS OR AVOID ADDITIONAL PENALTIES FOR VERY HIGH BLOOD ALCOHOL LEVELS.
IF YOUR BLOOD WAS DRAWN BY HOSPITAL STAFF BECAUSE YOU WERE HOSPITALIZED DUE TO INJURY, STANDARD DUI BLOOD DRAW TECHNIQUES MAY NOT HAVE BEEN USED (FOR EXAMPLE AN ALCOHOL SWAB MAY HAVE BEEN USED TO STERILIZE YOUR ARM). A HOSPITAL DRAW CAN BE CHALLENGED IF THERE IS ANY SUSPICION THAT THE RESULTS MAY BE FAULTY DUE TO INCORRECT BLOOD DRAW PROCEDURE OR THAT AN UNQUALIFIED INDIVIDUAL DREW YOUR BLOOD. IN ADDITION, ISSUES REGARDING PATIENT-DOCTOR CONFIDENTIALITY MAY ARISE AND PREVENT THE GOVERNMENT'S USE OF A HOSPITAL DRAW.
7
3-HOUR PRESUMPTION
POLICE OFFICERS ARE NEVER ABLE TO TEST YOUR BLOOD ALCOHOL PRECISELY AT THE TIME YOU ARE DRIVING. TYPICALLY AT LEAST 10-40 MINUTES ELAPSE, SOMETIMES MORE THAN AN HOUR OR TWO SUBSEQUENT TO DRIVING. THEREFORE THE LAW PROVIDES THE GOVERNMENT WITH A PRESUMPTION THAT AS LONG AS THE TEST SAMPLES ARE OBTAINED WITHIN THREE HOURS OF DRIVING, THE LAW WILL PRESUME THAT THE RESULT OBTAINED REFLECTS YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. IF THE TEST SAMPLE WAS NOT OBTAINED WITHIN 3 HOURS, THEN THE GOVERNMENT CANNOT RELY ON THIS PRESUMPTION AND YOU MAY VERY WELL HAVE A WINNING CASE.
IN ADDITION, THE 3-HOUR RULE IS A LEGAL FICTION WHICH MAY BE REBUTTED WITH CERTAIN TYPES OF AFFIRMATIVE EVIDENCE THAT THE TEST IS NOT AN ACCURATE REFLECTION OF YOUR ALCOHOL LEVEL AT THE TIME OF DRIVING. THE BEST EXAMPLE IS EVIDENCE OF DRINKING AFTER DRIVING.
8
REFUSALS
IF THE POLICE FAILED TO OBTAIN A SAMPLE OF YOUR BREATH, BLOOD OR URINE, YOU MAY FIND AN ALLEGATION THAT YOU VIOLATED THE IMPLIED CONSENT LAW WHICH REQUIRES YOU TO PROVIDE SUCH A SAMPLE PURSUANT TO A VALID ARREST IF THE OFFICER REASONABLY BELIEVED YOU WERE DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS.
ALTHOUGH THE BOTTOM LINE IS WHETHER YOU PROVIDED A SAMPLE OR NOT, MUCH OF THE LEGAL FOCUS MAY SHIFT TO THE OFFICER. DID THE OFFICER HAVE REASONABLE CAUSE TO BELIEVE YOU WERE DUI? PRECISELY WHEN DID HE/SHE REQUEST THAT YOU PROVIDE THE SAMPLE, PRECISELY WHAT DID THE OFFICER SAY WHEN HE/SHE ASKED YOU TO PROVIDE THE SAMPLE, AND PRECISELY WHAT WARNINGS WERE GIVEN TO YOU REGARDING THE CONSEQUENCE OF FAILING TO PROVIDE THE SAMPLE?
REFUSAL ALLEGATIONS CAN OFTEN BE PLEA BARGAINED OUT OF A COURT CASE, BUT THE DMV WILL STILL SUSPEND YOUR LICENSE FOR AT LEAST ONE YEAR WITHOUT ALLOWING YOU TO OBTAIN A RESTRICTED LICENSE, SO REFUSAL CASES AT THE DMV ARE CRITICAL TO PRESERVING YOUR DRIVING PRIVILEGES.
MOST REFUSAL ALLEGATIONS ARE WON WHEN WE CAN ESTABLISH THAT THE ARREST WAS NOT VALID, OR THAT THE OFFICER FAILED TO WARN YOU THAT YOU WOULD LOSE YOUR LICENSE FOR A YEAR IF YOU REFUSE TO PROVIDE A SAMPLE, OR THAT YOU WERE INCAPABLE OF UNDERSTANDING THE WARNINGS DUE TO INJURY OR THE OFFICER'S MISINFORMATION. IF YOU SUBMITTED TO THE PRELIMINARY ALCOHOL SCREENING TEST (PAS), WHICH DOES NOT SATISFY THE LEGAL REQUIREMENT, STILL, SOMETIMES IT IS POSSIBLE THAT THE FACTORS ABOVE MAY ALLOW THE DMV TO ACCEPT THE PRELIMINARY RESULTS.
9
NECESSITY
SOMETIMES PEOPLE FEEL COMPELLED TO DRIVE WHILE INTOXICATED IN ORDER TO ESCAPE FROM A DANGEROUS SITUATION OR TO HELP SOMEONE ELSE. THIS IS AN "EQUITABLE DEFENSE" WHICH CAN RESULT IN REDUCED OR DROPPED CHARGES IN COURT, BUT SUCH DEFENSES ARE NOT RECOGNIZED AT THE DMV.
THESE DEFENSES ARE MOST SUCCESSFUL WHEN WE CAN ESTABLISH THAT THE DANGER WAS OF SUCH A NATURE THAT A SOBER, REASONABLE PERSON WOULD HAVE BEEN COMPELLED TO DRIVE, AND THAT YOU DROVE ONLY SO FAR AS WAS NECESSARY TO ESCAPE THE RISK OF DANGER OR OTHERWISE ADDRESS THE EMERGENCY.
10
POLICE REPORTS
THE COURT AND DMV PROCESS ARE PRIMARILY FUELED BY THE POLICE REPORT. A CAREFUL, DETAILED EXAMINATION OF POLICE REPORTS CAN OFTEN REVEAL NUMEROUS ERRORS. SOME ERRORS ARE NOT LEGALLY SIGNIFICANT, BUT OTHERS CAN BE FATAL TO THE GOVERNMENT'S CASE AGAINST YOU, ESPECIALLY AT THE DMV WHERE DOCUMENTS USUALLY ARE THE ONLY EVIDENCE CONSIDERED. IF AN IMPORTANT SIGNATURE IS MISSING AT A CRITICAL PLACE ON A FORM, AND THE DMV DOES NOT CATCH THIS ERROR OR OMISSION IN TIME TO SUBPOENA THE RESPONSIBLE PARTY TO "FIX" IT AT THE HEARING, THEN THE DMV CASE MAY BE A WINNER. EVEN NUMEROUS MINOR ERRORS MAY CALL INTO QUESTION THE CREDIBILITY OF THE OFFICER WHO COMPLETED THE DOCUMENTS, USUALLY THE ARRESTING OFFICER.
Return to California DUI Lawyers
|