Author Archives: Lawrence Taylor

Challenging the Blood Test in a California DUI Case

Challenging the Blood Test in a California DUI Case

If you’ve been charged with a DUI in California, one of the first things you may be wondering is how strong the evidence against you is. In particular, you’ll likely be curious about the blood test results. What if there’s something wrong with those results? Can they be challenged in court?

In this post, we’ll explore some of the ways that you can challenge blood test evidence in a California DUI case and how a California DUI attorney can help you in challenging the blood test in a DUI case.

Keep reading to learn more.

How Accurate Are BAC Blood Tests?

Blood alcohol concentration (“BAC”) blood tests can be very accurate, but sometimes they produce misleading results. The absolute percentage might be “correct,” but offer an incomplete or inaccurate picture of the person’s blood alcohol concentration.

If the sample got contaminated in one of several ways, the testing procedure might be reading the alteration rather than the individual’s actual BAC. For example, if the person drawing the blood cleans the surface of the skin with an alcohol swab before inserting the needle into the vein, the blood sample can get contaminated with the alcohol from the swab.

The blood sample should be collected by a trained professional who follows protocols to the letter. Another issue is the environment where the blood draw occurred. The sample should be drawn when the defendant is in a proper medical environment.

Also, blood alcohol levels change over time. If there is a delay in having the blood sample collected, the test results might not be accurately reflective of the person’s BAC at the time of the traffic stop.

How Long Does It Take to Get a Blood Test Back for Alcohol?

Unlike courtroom drama television shows, in real life, a quick turnaround for a BAC blood test is when you can receive a result in a month to a month and a half. Often, results take significantly longer.

For example, in a large city where a laboratory is trying to process many BAC tests, the wait for test results could require much greater patience. Also, if your lawyer files a motion for blood split testing, the timeframe will depend on the independent laboratory’s workload and efficiency.

What Can Affect a Blood Alcohol Test?

Age, gender, weight, and several other factors can affect the results of your blood alcohol test. In general, the older you get, the faster your BAC goes up after a drink. The BAC in women usually rises faster than in men. The BAC will go up more quickly in people who weigh less than in people who weigh more.

Certain medications can heighten the effect of alcohol, raising a person’s BAC faster than they might expect. Some illegal drugs can have a similar effect.

Some racial or ethnic groups will generally process alcohol slower than others, which can result in a higher BAC and in less time.

When you drink on an empty stomach, your BAC goes up more quickly than if you ate something before or during your consumption of alcoholic beverages.

Also, different kinds of drinks can affect you differently in terms of your BAC. A glass of wine, a bottle of beer, and a cocktail can have vastly different amounts of alcohol. Even within the same category, there can be marked differences in the strength of the alcohol. One kind of cocktail, for example, a Long Island Iced Tea, can contain far more alcohol than another, like a Campari and soda.

Does a Breathalyzer Read Higher than a Blood Test?

Some factors can cause a Breathalyzer result to spike more quickly than a blood test, while some other factors could cause a blood test to show a higher BAC sooner than a breath test. For example, if a person has mouth alcohol, a breathalyzer will show a higher rating than a blood test.

Usually, however, a breathalyzer does not read higher than a blood test because of the biological process of how the body metabolizes alcohol. When you consume an alcoholic beverage, the alcohol goes into the mouth, down the throat, and into the stomach.

As part of the digestion process, the stomach will absorb some of the alcohol, which will then pass into the bloodstream. If you had something to eat before or while you drink, some of the alcohol will not be in direct contact with small intestines, so the absorption of alcohol into the bloodstream will be slower.

On the other hand, if you do not have food in your stomach when you drink alcohol, your digestive tract will absorb alcohol and release it into the bloodstream. The absorbed alcohol gets into your lungs as blood passes through the vessels in your lungs. Only then can a breathalyzer measure your BAC, as long as you do not have mouth alcohol.

DUI Blood Testing: How to Challenge the Results in Your DUI Case

If you think that someone made an error in your blood test, there are several ways to challenge that fact in court. Some challenges are based on BAC results that are unreliable. For example, the lab might have inadvertently switched samples. Also, samples can get intermingled with other samples if there is not enough blood to run a test.

The blood sample could get contaminated after collection, leading to an inaccurate result. The use of improper collection procedures, like wiping the surface of the skin with an alcohol swab, could result in a false positive result. Sometimes, the blood sample ferments inside the tube. The fermentation process can cause the sample itself to make alcohol.

Violation of Title 17 regulations can be grounds for challenging the results of DUI blood testing. If the equipment has not been maintained properly and calibrated as required, there is no way to know if the readings are accurate.

If your complaint about the test results centers on the lab equipment or the quality of the testing procedures rather than about the blood sample itself, your attorney could request a blood split order. If granted, the judge will order the lab to separate some of the blood sample so that you can have it sent to an independent lab for verification of the BAC results.

Can You Challenge a DUI Blood Test?

Yes, you most certainly can challenge a DUI blood test if you have grounds for doing so. Of course, the first step in this process is assessing whether the BAC results the prosecutor is relying upon sound feasible. Having a level of 0.08 or higher could be expected if you weigh 110 pounds and had six double vodkas at a bar in one hour right before getting behind the wheel. On the other hand, if a professional linebacker had one beer with a double cheeseburger and fries three hours before getting pulled over, a level of 0.08 or higher would make no sense at all.

Sometimes, people have no idea what mistake caused the incorrect DUI blood test results, but they know that they were neither drunk nor impaired. If that is your situation, a California DUI attorney can help you try to discover what went wrong. When the investigation uncovers the error, the blood test can be challenged, and the court can be asked to remove it from the evidence the prosecutor can use against you.

Even if there is not an error in the blood draw, the sample, or the performance of the laboratory test, you might still have an argument. An example of this would be if the officer pulled you over illegally. Thus, any charges against you should get dismissed.

How Law Enforcement Uses Blood Tests to Measure Blood Alcohol Concentration (“BAC”) in Drunk Driving Investigations and How the Defense Can Challenge the Results in Court

California has implied consent laws, which give police the authority to ask people to submit to a blood test after arresting them for a DUI. The police take the suspect to an appropriate facility to have a trained professional draw the blood. The blood tube gets labeled with the identification of the suspect. The sample gets sent to a laboratory.

After at least a few weeks, the results come back from the lab, establishing what should be precise measurements of the alcohol in the person’s bloodstream and whether any drugs were present. The prosecutor analyzes the test results to determine whether there is a criminal case against the defendant. If the BAC exceeded the legal limit, or legal or illegal drugs or other substances were found that could impair a person’s ability to drive safely, the prosecutor will decide whether to file charges.

However, all is not lost just because the prosecutor files criminal charges. The defense can challenge the results in court if any errors were made at any point in the testing process. The available challenge will depend on the unique facts of each case. For example, if the laboratory did not follow protocol in the storage of the blood sample vial, fermentation could happen. There is no way to separate how much of the alcohol that later gets measured is because of the fermentation and how much was from the defendant’s consumption of alcoholic drinks.

Blood Testing Procedures

MEDLINE Plus, a division of the National Institutes of Health, describes how a healthcare professional draws blood from a suspect’s arm. The medical professional will clean the surface of the arm and insert a small needle into the defendant’s arm. The needle is attached to a glass tube, where the blood gets collected. As soon as there is a sufficient quantity of blood in the tube, the healthcare personnel will remove the needle from the individual’s arm, stop the bleeding with a cotton ball, and apply an adhesive bandage or a piece of paper tape.

The Cleveland Clinic explains that the amount of alcohol in a person’s blood, also called “blood alcohol concentration” or “BAC,” is the amount of alcohol that the stomach and small intestines have absorbed after a person drinks alcohol, and that their liver has not yet filtered out through metabolizing the alcohol. 

Some people develop a high tolerance to alcohol over time. It takes a larger quantity of alcohol for them to feel the effects of the substance. Still, a person with a high alcohol tolerance can have a surprisingly high BAC, even though they do not even feel buzzed. A person’s BAC measures the volume of alcohol in the blood. A BAC is not a measure of the feeling of drunkenness, also called intoxication.

Challenging Blood Test Results in Court

It is possible to successfully challenge blood test results in court. However, fighting DUI charges is not a job for amateurs. Lawyers who represent people charged with drunk driving, however, know multiple ways to attack the use of blood test results in their clients’ DUI cases.

If a police officer violates a driver’s constitutional rights, that, in and of itself, can be grounds to challenge blood test results that came out of an improper traffic stop. Chain of custody issues can also be a powerful defense because they can cast doubt on whether the blood sample that got tested was actually that of the defendant.

Getting Help from a DUI Attorney

You do not have to go through this stressful situation by yourself. A good California DUI lawyer can talk to you and help develop a strategy for your defense. Whether you had blood alcohol testing, breath testing, or both, you will want to work with a California DUI attorney to try to achieve the best possible outcome in your circumstances.

How Accurate is a Blood Test for DUI? How Do I Challenge a DUI Blood Test and Dispute the Results?

A blood test is only one of many methods that law enforcement officers use to try to determine whether a person can be charged with drunk driving. The police can also use blood tests, breath analysis, physical observations, field sobriety testing, and urine tests in their investigations.

Blood testing is expensive compared to other forms of DUI chemical testing. Also, blood testing is inconvenient, uncomfortable, and invasive. The other forms of BAC analysis do not involve jabbing a needle into a suspect’s arm.

Assuming that the blood sample was drawn correctly and handled properly, and that the testing procedures were performed using scientific protocols, the testing results can be highly accurate. Of course, other factors that can affect the accuracy of the result, including a delay in drawing the blood sample, a delay in running the test on a blood sample such that fermentation can result, losing a blood sample, mixing up a suspect’s blood sample with someone else’s, and contaminating the defendant’s blood sample with a foreign substance.

Complications Surrounding Blood Testing for DUI and the Prosecution

Not everyone is a good candidate for a DUI blood test. For people with certain health conditions, it can be dangerous to subject them to having their blood drawn. For example, people who take anticoagulant medication should not be forced to have a blood BAC test. Instead, they should be offered a breathalyzer test or urine test.

Other medical conditions that can have a health exemption for chemical testing by blood sample include certain heart conditions and hemophilia. If the suspect notifies the police of the condition, the officer breaks the law if they force the individual to undergo a blood draw.

What Can I Do for Legal Methods to Fight a DUI Blood Test Level Case?

When your lawyer uncovers evidence of an error made in your DUI blood test, they can file a motion before trial, asking the judge to suppress or exclude the evidence. If the judge agrees that the test results should not come in at the trial to get used against you, the jury will not see that evidence.

Blood test results are crucial evidence in a drunk driving case. If the prosecution relied on the blood tests for establishing the defendant’s BAC and the judge throws out that evidence, the judge might dismiss the case. Mounting a successful challenge to blood test results is a way to create reasonable doubt as to the defendant’s guilt.

The Importance of Analyzing Different Blood Alcohol Content Levels

The National Institutes of Health has published studies that show the variability of blood alcohol concentration (“BAC”) assessments. These studies establish that forensic alcohol analysis involves measurement uncertainty. Because of the variability of results, and the criminal consequences that can happen when courts rely on these BAC measurements, some researchers recommend multiple assessments to reduce errors caused by measurement uncertainty.

What is Reasonable Cause Under the Law for Having to Take the DUI or DWI Blood Test?

Reasonable cause has to do with an officer’s belief that the driver was operating a motor vehicle while under the influence of alcohol, a drug, or both. Reasonable cause is a much lower standard of proof than the well-known standard of “beyond a reasonable doubt.” For the beyond a reasonable doubt standard of proof, a  jury must find, beyond a reasonable doubt, that the defendant committed the act with which they were charged before they can issue a guilty verdict.

Reasonable cause, however, can be that the officer observed behavior consistent with the driver being under the influence of alcohol or drugs. For example, finding a driver who is slumped over the wheel in a traffic lane could indicate that the individual lost consciousness due to intoxication. On the other hand, the situation could be the result of a medical emergency.

When Is a DUI Blood Test Required by California Law?

When a California police officer believes that a driver who is under the influence of alcohol or drugs caused an accident, they can request a warrant that could force the driver to have a BAC blood test. Law enforcement can also require a blood test when a driver is deceased or is not conscious.

When a suspected drunk driver cannot take a breath test because of a medical condition like chronic obstructive pulmonary disease (COPD), the officer could require a blood or urine test. If the police suspect the driver of driving under the influence of drugs, a breath test for alcohol will be useless. A blood test is necessary to find the presence of drugs in a person’s bloodstream.

Is It Better to Take a DUI Blood Test or a Breath Test?

For people who pass out at the sight of a needle, the thought of having a blood draw for a BAC is terrifying. A person in that situation will likely opt for a breath test or a urine test. People who cannot blow hard enough to get a testable sample of breath might find a blood test or breath analysis to be their only option.

People who have mouth alcohol because of recent use of breath fresheners might find it better to give a urine or blood sample. If you are on a high protein, low carbohydrate diet or you have a medical condition that causes your body to generate a high quantity of ketones, a breath analysis might cause a false positive result.

What Are the Title 17 Regulations?

The California legislature recognized that peoples’ lives could get ruined by errors in DUI breath tests, blood tests, and urine tests. To protect Californians from this unfair consequence, Title 17 of the California Code of Regulations created rules that govern how law enforcement can conduct these tests.

Are Blood Test Results Presumed to Be Valid?

Although there is generally a presumption that blood test results are valid, your defense counsel can submit evidence that might rebut the presumption.

Can the Police Force a Person to Take a Blood Test?

Yes, if a judge issues a warrant for the forcible drawing of a blood sample, the police can obtain the blood draw against the will of the subject individual. The police are allowed to use as many officers as needed to hold down the person while their blood gets drawn.

Can a Driver Have Blood Tested in an Independent Laboratory?

Yes, a driver can have their blood tested in an independent laboratory. The defense lawyer will file a motion requesting a blood split. If granted, the sample of the defendant’s previously-drawn blood will get divided into two parts, thus enabling testing in a different laboratory.

Challenging Blood Tests in DUIs Involving Drugs

Many of the same challenges that are available for BAC blood test results are also available in DUI or DUI-D cases involving drugs. The police must follow the Title 17 regulations to the letter, and draw, store, and test the blood sample according to protocol. If there were errors made, the defense can challenge the use of the blood test results.

Get an Experienced DUI Attorney on Your Side

You don’t have to do this alone. In fact, representing yourself is ill-advised. Talk to one of our highly qualified California DUI attorneys for help on challenging BAC blood test results by reaching out to us here.

 

 

 

Sources:

https://medlineplus.gov/lab-tests/blood-alcohol-level/

https://my.clevelandclinic.org/health/diagnostics/22689-blood-alcohol-content-bac

https://pubmed.ncbi.nlm.nih.gov/24482419/

https://govt.westlaw.com/calregs/Browse/Home/California/CaliforniaCodeofRegulations?guid=I94E0B3505A2011EC8227000D3A7C4BC3&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)&bhcp=1

 

Top 20 California DUI Defenses

Top 20 California DUI Defenses

Dealing with a DUI charge in California can seem daunting, but don’t worry – you’re not alone. This post will outline the top 20 defenses you and your DUI defense attorney can use to fight your DUI charge. No matter what situation you find yourself in, these tips can help improve your chances of successfully beating a DUI. So read on and learn more about how to build the best defense for your case.

What is the Best Defense for a DUI?

The best defense depends on the facts of your situation. One might say that the best defense for a DUI is the one that achieves the most positive results for the defendant. In one case, the best DUI defense might concern a challenge of the traffic stop itself, if the police officer did not have reasonable cause to pull over the driver. In another case, the best DUI defense might concern a breathalyzer generating false positive results. 

There are numerous possible defenses to drunk driving charges. We will go over 20 of them in this article, but please be aware that the circumstances of your DUI arrest could create the possibility of additional legal challenges. You should never give up hope and just plead guilty to a DUI without exploring legal defenses and trying to get the charges dismissed or negotiated to a less serious offense.

20 Legal Defenses for Fighting California DUI Charges

We will go into these concepts in greater detail below, but here are 20 of the most common legal defenses that people use when they are trying to fight DUI charges in California. 

  1. Mistakes in DUI blood tests;
  2. Violations of Title 17 California Code of Regulations;
  3. Sub-optimal driving performance of a sober driver;
  4. Breathalyzer errors;
  5. Dietary or medical conditions related to ketosis;
  6. No legal justification for the DUI traffic stop;
  7. Mouth alcohol;
  8. Rising blood alcohol;
  9. Lack of mental impairment;
  10. Police misconduct;
  11. Non-compliant sobriety checkpoint for DUI stop;
  12. Medical defenses, like acid reflux, hiatal hernia, or GERD;
  13. Failure to read Miranda right;
  14. Defendant was not driving;
  15. Radio frequency interference (RFI);
  16. Mistakes in field sobriety testing;
  17. BAC higher than the legal limit but the driver was not intoxicated;
  18. Other reasons for physical symptoms of intoxication;
  19. Universal variances in chemical testing results; and
  20. Significant difference between defendant’s BAC and impairment.

Your defense lawyer will perform an investigation to see whether any of these challenges or other defenses are available to you. The procedural aspects of these defenses will vary depending on the argument your DUI attorney wishes to raise. For example, one defense might be useful when negotiating with the prosecutor, while another challenge might lead to a motion to suppress evidence or a motion to dismiss the charges.

DUI Breath Test Errors

Four of the most common mistakes with DUI chemical testing that involves breath samples are:

  • Positive results caused by non-alcoholic substances, like breath sprays or mouthwash. Additionally, the breath of people with diabetes can contain acetones without the individual having consumed alcohol. These acetones can generate a false positive result on a chemical breath test. 
  • A person’s mouth can contain high levels of alcohol shortly after they consume an alcoholic beverage. Also, burping or vomiting can leave residual alcohol in the mouth. After drinking alcohol or having vomited or burped, the suspect should wait 15 minutes for the residual alcohol to subside before testing, to increase the reliability of the results.
  • Like any type of equipment, breath test devices must be checked regularly for accuracy. The sensors can malfunction with frequent use, resulting in higher readings without actual higher levels of BAC. Failure to calibrate the breathalyzer according to schedule can yield unreliable results.
  • Breathalyzers operate by using software. Every type of software can develop glitches and other reliability issues. In addition to catching hardware problems, regular calibration and maintenance of breath testing devices must be performed as per schedule to increase the likelihood of accurate results.

Your DUI lawyer can investigate to see if any of these errors were present. 

Mouth Alcohol as a DUI Defense

Sometimes, a person can test positive on a chemical analysis of their breath for BAC even if they did not drink any alcohol. Many people do not realize that breath freshening sprays or mouthwashes can contain alcohol. Some over-the-counter cold or cough medications contain alcohol, and even chewing tobacco might be treated with alcohol.

If you have dentures or retainers in your mouth, those dental appliances can harbor alcohol from food and beverages, and release the chemical during the breath test. Also, if you have a hiatal hernia, heartburn, acid reflux, or gastroesophageal reflux disease (GERD), your medical condition could artificially cause an elevated BAC reading on a breathalyzer test.

GERD, Acid Reflux and Hiatal Hernia: Medical DUI Defenses 

Unless you are underage, on probation for an alcohol-related offense, or have another extenuating circumstance, there is nothing illegal about driving after having had a small amount to drink as long as you are under the legal limit and not impaired by alcohol. Unfortunately, certain medical conditions can cause falsely high readings on a breathalyzer because these diseases “bounce” more alcohol particles back up the throat and into the mouth, where they get read by the breath testing device.

For a breathalyzer device to work correctly when measuring a person’s BAC, they must assess “deep lung air” as opposed to mouth alcohol. Breath testing equipment is not always sensitive enough to separate deep lung air BAC from mouth alcohol BAC, despite what some prosecutors argue.

Ketosis as a Result of Diabetes or Low-Carb Diets

People with diabetes might go through life in a frequent state of ketosis or ketoacidosis, which can cause DUI breath tests to render inaccurate readings. Without getting into the complicated chemistry behind this phenomenon, suffice it to say that the ketones a person can produce in their liver when they are experiencing ketosis can register as alcohol on a breathalyzer.

Although the ketones will be on the person’s breath and thus measured by a chemical breath test device, these substances are not actually intoxicating to the person. In fact, many people do not have any noticeable symptoms of ketosis.

Low carbohydrate, high protein diets are quite trendy now, and have been popular for years. Although some people find these diets to be effective for weight loss, they might not realize that they could fail a DUI breath test while on one of these weight loss regimens because the diets place the body into a state of ketosis. Breathalyzers cannot tell the difference between ketones from diabetes and ketones from a diet, much less whether the positive breath test result was from alcohol or ketones.

Auto-brewery Syndrome (Gut Fermentation)

A rare medical condition can cause a sufferer to become drunk even when they have not consumed alcohol. “Drunkenness disease,” also called endogenous ethanol fermentation, gut fermentation syndrome, or auto-brewery syndrome, is when your body creates its own alcohol from carbohydrates, according to HealthLine.

A person with this medical condition could have a blood alcohol level many times higher than the legal limit after eating starchy or sugary foods. A person with this disease can prove their condition through medical testing. The National Institutes of Health reports that fungi or bacteria in the individual’s body can create the appearance of alcohol intoxication. 

Breathalyzer Test Errors or Inaccuracies

A breathalyzer is a convenient and quick way to measure a person’s blood alcohol concentration (“BAC”), but it is not without errors. The device merely takes a “snapshot” of the chemicals in a person’s breath at the moment of testing. Many things can go wrong to cause an inaccurate BAC result.

For example, the device might not be in proper working order, or the officer who administered the test might not have followed the required protocols. Residual mouth alcohol from breath sprays or mouthwash could falsely trigger a positive result. Certain diets and medical conditions like diabetes or GERD can lead to an inflated BAC level or a false positive based on ketones instead of alcohol. Also, the phenomenon of rising blood alcohol can render an inaccurate chemical breath test outcome.

Rising Blood Alcohol as a DUI Defense

Rising blood alcohol can be a useful defense if your BAC is barely over the legal limit. When a person drinks alcoholic beverages, it takes time for the alcohol to affect the body, just like you do not get immediate relief the second that you swallow a pain pill.

A person’s BAC follows a bell-shaped arc, which rises, peaks, and then goes back down. If you are pulled over for suspicion of drunk driving shortly after consuming alcoholic beverages, and the officer does not perform the chemical breath test for a significant period of time, you might be able to raise the legal defense of rising blood alcohol.

In other words, the BAC level at the time that you blew into the breath test device was not the same as your BAC level when the officer pulled you over. If your BAC is substantially higher than the legal limit, however, this defense is likely to be unsuccessful. For a person whose breath test registers a BAC only slightly above the legal limit, though, one might argue that a breath test performed immediately would have shown a BAC that would not have violated California’s drunk driving laws.

DUI Blood Test Errors

Blood testing for DUI charges is not immune from the possibility of mistakes. Chain of custody is one of the more common defenses in these cases. The prosecution must be able to prove who had the blood sample in their possession at all points from the moment of drawing the blood sample, to running the test, and securing the evidence in the custody of law enforcement to prevent any mix-up of samples or contamination of the blood sample in question.

Sometimes, blood test results are inconclusive. Also, improper storage of the blood can call into question the accuracy of the alcohol or drug analysis.

Lack of Probable Cause for a DUI Stop

The police are not allowed to simply pull over anyone they wish to subject to a traffic stop or perform a DUI arrest without justification. When a person gets pulled over because of how they look, the kind of car they’re driving, or some other reason that does not involve reasonable suspicion for a traffic stop or probable cause for a DUI arrest, they might have grounds for dismissal of the charges. Failure to enforce this requirement of probable cause or reasonable suspicion would result in giving law enforcement officers the opportunity to engage in widespread harassment.

If the police pulled you over for a DUI stop without the required level of justification, your attorney could file a motion to suppress any evidence the officer obtained. If the judge grants this motion, the outcome could be a gutting of the evidence supporting the charges against you, resulting in a not guilty verdict or a dismissal of the DUI case.

Arresting Officer Didn’t Read Miranda Rights

Thanks in part to inaccurate portrayals on television crime dramas, many people have a skewed understanding of Miranda rights. When a person is in custody, the police are not supposed to perform an interrogation until after they’ve read the individual their Miranda rights. At the moment the police perform the arrest, they do not have to “Mirandize” the suspect unless they plan to start the questioning right away.

You are receiving a recitation of your Miranda rights when the officer informs you that you have the right to remain silent, that you have the right to have a lawyer present when you are questioned and that if you cannot afford a lawyer, you might be able to receive an appointed lawyer, and that if you choose to say anything, it can be used against you in court.

Your criminal defense attorney will evaluate whether you were in custody or not. If a reasonable person would feel that they were not free to leave, the situation will likely be determined as custodial. Asking questions beyond a person’s name and other non-incriminating information is usually considered interrogation.

Innocent Explanations for Physical Signs of DUI

Police officers look for physical symptoms of intoxication when they pull over a suspect for drunk driving. If you have slurred speech, your face is red, you have watery or red eyes, your gait is unsteady, or they smell alcohol on your breath, those indications will likely be noted by the officer as physical signs of driving while under the influence of alcohol.

Of course, many other things can cause those symptoms, entirely unrelated to the presence or consumption of alcohol. For example:

  • You could have red or watery eyes because of allergies or a common cold.
  • Your walking gait could be perceived as unsteady because of a neuromuscular disease, a past back or leg injury, a history of stroke, or some other medical condition.
  • Your face could be flushed because of high temperatures, sunburn, a food allergy, or simple embarrassment about getting pulled over.
  • Slurred speech could be the result of a past stroke or mini-strokes, Parkinson’s disease, a past head injury that damaged the cranial nerves, or a host of other medical causes.
  • You might have an odor of alcohol on your breath after consuming low-alcohol beer or wine, or having consumed a small amount of alcohol and burping shortly before the officer smelled your breath. 

Inaccuracy of Field Sobriety Tests

People can fail field sobriety tests because of factors unrelated to alcohol, like sleep deprivation from having a sick child at home, confusion due to advanced age, gross motor skill disabilities, or misunderstanding instructions due to language differences or hearing loss. 

No matter how objective one might try to make the parameters of field sobriety testing, there will always be a component of subjectivity on the part of the officer. What one officer might consider as significant impairment, another might view as slight or no impairment.

Simple Bad Driving–Not DUI

Most collisions involve poor decision-making and questionable driving skills, rather than the use of alcohol or drugs. A person might not notice another vehicle or that the light has changed because they are distracted or exhausted. Many people have their minds on other matters when they’re behind the wheel. Sometimes, a police officer might interpret simple bad driving as driving under the influence of drugs or alcohol.

BAC Over the Legal Limit Not the Same as DUI

DUI, driving under the influence of alcohol, is not the same thing as having a blood alcohol concentration (BAC) that exceeds the legal limit. When a person drives under the influence of alcohol, that means that they experienced impairment that affected their mental or physical ability to drive safely. A person might have a BAC over the legal limit but be perfectly capable of operating a motor vehicle in a safe manner.

Inherent Error Rates for DUI Chemical Testing

Every device has a margin of error. For this reason, specifications for equipment often include a range of errors that one can expect when using the device. For example, a thermometer, when functioning correctly, might have an accuracy rate of +/- 0.01 degrees Fahrenheit. When properly calibrated and maintained, the thermometer can reliably measure the temperature to within 0.01 degrees above or below the actual temperature.

Equipment used in DUI chemical testing is no different. All of these devices have a margin of error. When you have a chemical breath test, blood test, or urine test, the equipment used will not always generate a result that is precise. If your BAC is borderline, the inherent error rates for DUI chemical testing could be the defense that saves you from a conviction.

DUI Sobriety Checkpoint Not in Compliance with the Law

The police are fond of using DUI sobriety checkpoints to try to catch large numbers of drunk drivers, particularly during the holidays. For people trying to drive from point A to point B, however, these checkpoints can be a great inconvenience.

To prevent law enforcement from using sobriety checkpoints to harass people, the California state legislature has enacted regulations that must be followed. If the police make a mistake in following these rules when setting up a DUI checkpoint, your DUI defense attorney might be able to file a motion to suppress evidence or a motion to dismiss the DUI charges. An administrative, supervising officer who will not be at the scene must make all the operational decisions about the setup of the checkpoint to prevent constitutional violations.

The operational decisions must include a neutral process, chosen beforehand, for determining which vehicles will get stopped. For example, the officers will stop every fourth car or every 10th car at the checkpoint.

Radio Frequency Interference (RFI) as a DUI Defense

The United States Department of Justice, Office of Justice Programs (OJP), has acknowledged for the last 40 years that radio frequency interference (RFI) can cause inaccurate test results on breathalyzers. Although some of the chemical breath test device technology has improved during that time, the problem of RFI has not been entirely eliminated.

BAC Doesn’t Accurately Reflect Impairment

This situation arises when a person’s BAC is higher than one might expect because they do not appear to have alcohol impairment. Medical conditions, weight, gender, age, and other factors can cause a person’s BAC to be elevated. California DUI attorneys could argue this defense on your behalf.

Police Misconduct in DUI Cases

If the arresting officer made a mistake or violated your constitutional rights, your defense lawyer could use that fact to keep some or all of the evidence out of court, negotiate lesser charges, or seek a dismissal of the criminal case. 

Police misconduct can include things like not having a valid reason for the traffic stop, making an improper arrest, mistakes in performing the breathalyzer test or field sobriety test, errors in administering blood testing or urine testing, violation of your constitutional rights, and lying in an affidavit or at court.

How to Get Out of a DUI or DWI?

The methods one might use to try to get out of a DUI or DWI will be highly individualized. A California DUI lawyer can evaluate your case and determine the best strategy to challenge the charges and try to get out of the DUI or DWI.

How to Fight a DUI Charge?

Fighting a DUI charge might involve your DUI defense attorneys attacking the chemical testing results, procedural violations of the traffic stop or arrest, or seeking to suppress the prosecutor’s evidence.

Is It Worth Getting a Dui Lawyer in California?

Sometimes, people hesitate about getting a DUI defense lawyer in Los Angeles because they are afraid of the expense. In reality, if you try to fight DUI charges by yourself and fail, the financial impact on your life can be significantly greater than the legal fees you would have paid to a California DUI lawyer.

Also, having an alcohol-related offense on your criminal record can cost you your job, your professional license, your freedom, your ability to transport yourself in a motor vehicle, and many additional adverse consequences. California DUI attorneys can help to fight DUI charges and protect your rights. Speak to one of our DUI Defense attorneys today by reaching out to us here.

Sources:

 

https://www.healthline.com/health/auto-brewery-syndrome#:~:text=Auto%20brewery%20syndrome%20is%20also,foods%20(carbohydrates)%20into%20alcohol.

https://www.ncbi.nlm.nih.gov/books/NBK513346/

https://www.dmv.ca.gov/portal/handbook/california-driver-handbook/alcohol-and-drugs/#:~:text=It%20is%20illegal%20for%20any,is%20on%20a%20DUI%20probation.

https://www.ojp.gov/ncjrs/virtual-library/abstracts/effects-rfi-radio-frequency-interference-breathalyzers-how-states

 

Rising Blood Alcohol as a Defense to DUI Charges in California

When you are charged with a DUI, one of the first things that courts will look at is your blood alcohol level. If it is found to be above the legal limit, you may face harsh penalties, including jail time and fines. However, if your blood alcohol level rises after you are pulled over but before you take a breathalyzer test, you may be able to use this as a defense in court. Learn more about California’s rising blood alcohol defense and how it could help you avoid a conviction.

What is a ‘Rising Blood Alcohol’ Defense in a DUI Case? 

One of the more common defenses raised to charges of driving under the influence is “rising blood alcohol.”

In many DUI cases, the defendant will claim that their blood alcohol level was rising at the time of their arrest, which is known as the rising blood alcohol defense. The theory behind this defense is that the defendant’s blood alcohol level was below the legal limit when they were driving but rose above the limit after they were pulled over. As a result, they would not have been impaired at the time of their arrest.

Unfortunately, this defense is often unsuccessful. Courts have held that it is the defendant’s responsibility to ensure that their blood alcohol level remains below the legal limit. However, in some cases, the rising blood alcohol defense may be successful if the defendant can prove that they did not have enough time to sober up before being arrested.

If you have been charged with DUI, it is important to speak to an experienced DUI attorney who can review your case and help you determine the best defenses available to you.

What Is “Rising Blood Alcohol”?

After a person consumes alcohol, it takes a little time for their blood alcohol levels to rise to a peak and then go back down. Even though a person stops drinking, their blood alcohol concentration (“BAC”) will continue rising for a period after the initial alcohol consumption. After drinking an alcoholic beverage, it usually takes between half an hour to two hours for a person’s BAC to peak.

If someone was pulled over under suspicion of drunk driving before their BAC had reached its peak, their blood alcohol level could be higher by the time their blood or breath gets tested. In other words, their BAC might be below the legal limit of 0.08 when they began driving and were pulled over, but over the legal limit by the time of the testing.

How Is Alcohol Absorbed in the Human Body?

According to HealthLink BC, the process of alcohol absorption begins in the mouth. The lining of the mouth absorbs some of the alcohol directly and as the beverage passes through the esophagus, the lining of the esophagus absorbs some alcohol as well. Traveling through the body, the walls of the stomach then absorb a portion of the alcohol, with the intestines—primarily the small intestine—absorbing the remainder of the alcohol.

If you have solid food in your stomach or intestines before or during alcohol consumption, the presence of the solid food will cause less of the alcohol to come into direct contact with the walls of the intestines. In that situation, the absorption process will be slower than if you drink on an empty stomach. So, having a full or empty stomach could make a significant difference in how slowly or quickly alcohol is absorbed into your body. If there is no food in your stomach, your body can absorb all the alcohol from one drink within roughly half an hour. If you have solid food in your stomach and it is relatively full, the absorption process can be slowed down to as long as 90 minutes.

Alcohol molecules are very small, which explains why they are absorbed and spread so quickly to every organ in the body. These molecules are easily dissolved in both water and fat, which are distributed throughout the body. It is also not necessary for digestive enzymes to break down the tiny alcohol molecules for them to get into the bloodstream.

If you drink something that contains more than 20% alcohol, you can actually delay your body’s absorption of the alcohol. A strong alcoholic beverage such as a mixed drink irritates the stomach lining, which slows down the passing of your stomach contents, including alcohol, into the small intestine.

Also of note is the fact that the speed at which your body metabolizes alcohol does not change based on how much alcohol you drank. You can usually metabolize the equivalent of one serving of alcohol per hour. As a result, a cocktail containing three shots of whiskey will take approximately three times as long for your liver to metabolize as a cocktail containing one shot of whiskey. 

How Do BAC Levels Change Over Time?

Just like a person’s blood sugar or other blood chemical levels, a person’s BAC is not a constant number. If you eat a handful of candy, your blood sugar will go up, peak, and then go back down. It is the same with alcohol. After you have an alcoholic drink, your blood alcohol will climb upward, reach a peak, and then descend. 

Generally, it takes about half an hour to two hours for a person’s blood alcohol level to peak after drinking. Of course, if a person continues drinking, the bell-shaped curve of their BAC levels from each drink can overlap. Thus, their results from a breath or blood test will vary accordingly. This phenomenon can be grounds for a rising blood alcohol defense. 

Factors That Affect the Rate at Which BAC Rises

The rate at which a person’s BAC rises can vary, depending on several factors, such as whether the person had an empty or full stomach or how strong their alcoholic beverage was. However, these are not the only factors that can affect the speed at which alcohol enters the bloodstream.

Other factors include:

  • The individual’s alcohol metabolism rate, which in turn, can vary by fitness, mood, digestion, hormonal cycle, and dietary habits;
  • The speed at which the individual consumed the alcoholic drinks. Having three drinks over the course of an evening will affect a person differently than slamming three drinks in 10 minutes;
  • Carbonation levels of their alcoholic drinks, as the body tends to absorb carbonated beverages more quickly;
  • The sex of the individual consuming the alcohol, as men tend to have more of a protective enzyme that can break down alcohol before it enters the bloodstream, thereby leading to a lower BAC. Additionally, women’s bodies tend to concentrate alcohol within the water in their system because their bodies have less water; and
  • The individual’s build and amount of body fat. Those with a high amount of body fat are likely to have a higher concentration of alcohol level in the bloodstream because body fat does not absorb alcohol. Additionally, when two people with different builds drink the same amount of alcohol, the larger-framed person will tend to have a lower alcohol content than the person with the smaller frame.

How Can “Rising Blood Alcohol” Lead to a False Result on a DUI Chemical Test?

As mentioned, rising blood alcohol refers to the unfortunate circumstance in which a person’s blood alcohol content gets tested when their alcohol levels are higher than they were when they were driving. This can be a DUI defense that an experienced lawyer may use to raise a reasonable doubt and prevent a conviction for intoxicated driving.

Can a Driver Use “Rising Blood Alcohol” to Fight DUI Charges?

Yes, drivers can use the rising blood alcohol defense to fight DUI charges. However, doing so successfully requires sophisticated medical knowledge and legal experience. While you will not want to try to raise this defense if you are handling your own case, raising this defense with an experienced drunk driving defense lawyer may make all the difference.

Is an Expert Witness Required?

Generally, yes; courts may require the testimony of an expert witness when the subject matter in question is not a matter of common knowledge, or if it is a complex subject which may be difficult to understand. In a case involving a rising blood alcohol defense, the expert witness would explain the medical science behind the concept of blood alcohol concentration levels changing over time and how a rising blood alcohol can lead to a false result on a blood test or breath test.

How Long Does Your BAC Continue to Rise?

A driver’s BAC level from one alcoholic drink can continue to rise for 30 to 120 minutes after they stop drinking. If a person had more than one drink per hour, it can take even longer for their BAC to peak. Please note that “one drink” does not refer to the container for the beverage.

“One drink” can mean one serving of wine, one beer, or one shot of hard liquor. If a cocktail contains multiple shots, it will count as multiple drinks. If a person drinks a “yard of beer,” it will count as multiple drinks, not one beer. Additionally, one serving of wine usually does not mean filling the glass to the brim.

How Soon Does Alcohol Increase Your BAC?

A person’s blood alcohol concentration can start to increase immediately when they start drinking alcoholic beverages. At first, their BAC goes up a little, and eventually reaches its peak, then goes back down. 

The speed at which it increases your BAC will depend on how strong the drink is, how quickly the drink is consumed, as well as many other factors. For example, a person who “nurses” one vodka tonic all evening will likely see their BAC rise more slowly than someone who guzzles two or three beers an hour.

How Does the Rising Blood Alcohol Defense Work?

As a reminder, the rising blood alcohol defense argues that a person’s BAC was actually lower when they were driving than it was at the time they were tested under suspicion of DUI.

How Do Prosecutors Determine BAC at the Time of Driving?

The prosecution often engages in “educated guesses” about how high or low the defendant‘s BAC was at the time of driving. The district attorney often extrapolates in reverse, starting with the breathalyzer test reading of the alcohol in the bloodstream at the time of the chemical testing by the police officer, then working backward to the time when the defendant was actually driving.

Can I Fight My DUI Charge with a Rising Blood Alcohol Defense?

If your situation meets the criteria for a rising blood alcohol defense, you might be able to fight your DUI charge using this defense, possibly supplemented with additional arguments as well. With this approach, you will want to work with a California DUI attorney and most likely hire an expert witness who can explain to the court why your BAC level at the time of testing was likely higher than when you were driving.

What Is the Best Defense for a DUI?

The best defense for a DUI will depend on the unique circumstances of your situation. The best defense in one DUI case might be very different from the best defense in a different DUI case. Legal arguments are not a “one size fits all” process, and your criminal defense attorney can discuss best possible strategies and defenses with you.

How a Rising Blood Alcohol Defense Can Get Your DUI Dismissed

If you can convince the judge or jury that your blood alcohol level was lower when you were driving than when it got tested, you might be able to get your DUI charges dismissed, particularly if your test results were only slightly above the legal limit.

Talk To A DUI Defense Attorney

You will want to talk to a California DUI attorney right away, to give yourself sufficient time to investigate and execute legal maneuvers to seek the most favorable outcome possible in your situation. If you’d like to learn more about applying this defense to your case, you can speak a DUI Defense attorney today by reaching out to us at this link.

 

Sources:

https://www.healthlinkbc.ca/mental-health-substance-use/substance-use/how-human-body-processes-alcohol#:~:text=Alcohol%20moves%20quickly%20from%20the,intestines%2C%20mainly%20the%20small%20intestine.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=23152

Booze Is Good for You!

It’s true!  Recent scientific research, some of it funded by our government, is on the path to finding that drinking alcohol is actually quite healthy!

Hmmm.  Maybe we should take a second look at this latest research into the health benefits of alcohol….


Alcohol Companies Are Funding Research to Convince You Drinking Is Healthy

April 14.  Huffington Post –  Officials at the government agency tasked with studying the health effects of alcohol aggressively courted alcohol executives to fund a $100 million clinical trial on “moderate drinking,” according to recently published investigations by The New York Times, Wired and Stat

The executives complied, according to the Times, with the understanding that this research would probably conclude alcohol is safe and lowers the risk of disease.

Together, these reports paint a disturbing picture about the way alcohol companies are trying to influence scientific understanding, and thus public perception, of alcohol as a health tonic…

Alcohol executives were allowed to help pick the scientists and preview the trial’s design, reports the Times, while Wired reported on how dependent the National Institutes of Health’s National Institute on Alcohol Abuse and Alcoholism (NIAAA) is on industry funding to complete the expensive, long-term study. Finally, Stat has a story about how scientists who published unflattering research about the alcohol industry were verbally abused by NIAAA officials and cut off from funding.


I seem to recall that “scientific research” (funded by the tobacco industry with government support) has already concluded that smoking cigarettes was not addictive.  It’s certainly heart-warming to know that science, government and industry is so reliable and concerned with our well-being….


(Thanks to Joe.)

Do Cops Have DUI Quotas?

The coercive effect of requiring police officers to make a minimum number of DUI arrests during a given period is obvious.  Drivers who the investigating officer does not feel there is probable cause to arrest for DUI will be arrested anyway.  Worst-case scenario:  cops will arrest drivers who they realize are not driving under the influence.  Of course, law enforcement — and local governmental agencies who pocket the extensive fines and fees — routinely deny having such policies.  And, as I’ve posted repeatedly in the past, it is a well-documented fact that drunk driving quotas are common across the country.  See, for example, “Inside Edition” Documents DUI Quotas Across U.S..   

Consider the following commentary appearing yesterday:


NHTSA Says Federal Law Requires Ticket Quotas

Jan. 30.  The Newspaper - Federal regulators are refusing to budge when it comes to requiring local police forces to use ticket quotas. The National Highway Traffic Safety Administration (NHTSA) on Thursday finalized the procedures local police departments use to receive their share of $450 million in traffic safety grants paid for by the federal tax on gasoline. In response to complaints from the National Motorists Association (NMA), the agency claimed it was powerless to change the way it allocated the funds…

“To qualify for funding, NHTSA requires an annual traffic safety plan from each state that must include statistics on seat-belt citations, impaired driving arrests, and speeding citations issued during grant-funded enforcement activities the previous year,” NMA President Gary Biller told TheNewspaper on Monday. “What outcome is expected other than the perpetuation of federally sanctioned ticket quotas?”…

“The federal statute further requires that highway safety plans be based on performance measures developed by NHTSA and GHSA,” the agency explained. “That report includes activity measures related to seat belt citations, impaired driving arrests and speeding citations… NHTSA may not waive these statutory requirements.”


So in addition to pocketing fees and fines for false DUI arrests, law enforcement has the added incentive of receiving federal funds.  But, of course, such quotas don’t exist, right? 


(Thanks to Joe.)