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Avoiding Jail Time in a California DUI Case


Whether a driver faces DUI charges in California or any other state, there is one potential consequence that is likely to be of concern to the person: incarceration. There is good reason for such concern: even a few days spent in jail can lead to a reduction in income or job loss. Not only this, but any time that a parent spends away from their child or that a spouse spends away from their partner can cause emotional hardship. All of this is on top of the harm to one’s reputation that might result from serving time for a DUI conviction.

First-Time DUIs Do Not Usually Lead to  Jail Time

A person is unlikely to face jail time for their first DUI conviction. While the maximum sentence   for a first-time DUI includes six months in jail, this outcome is not likely in many cases. Most first-time DUI offers include a period of  three years of informal probation, approximately $2,000 in fines and fees, a 3-month DUI program, the MADD VIP program, and restitution if there was a collision.

Drivers convicted of their first DUI and whose cases involving aggravating factors are more likely to face jail time. Such factors can include:

· Causing injuries

· Excessive speeding

· Reckless driving

· Driving on a suspended license

· Having a blood- or breath-alcohol concentration that is significantly higher than the legal limit.

Thus, drivers convicted of their first DUI may need not worry about having to serve jail time. Instead, they will likely placed on a period of informal probation. If there are aggravating factors involved, however, then the driver faces a greater risk of incarceration

Subsequent DUIs

Once a person is convicted of a subsequent DUI in California within a 10 year period, courts are required to sentence the person to some period of incarceration. Under these circumstances, it becomes even more important to challenge the prosecution’s case. There are several areas where the prosecutor’s case may be vulnerable:

· Lack of evidence of essential elements: The prosecution must be able to prove that the defendant was driving a vehicle. If there are no witnesses who saw the person driving and there is little circumstantial evidence suggesting the person drove a vehicle, the prosecutor may not be able to win their case. 

· Suppressed breath or blood test results: If law enforcement officers did not follow the proper steps in collecting, preserving, and testing a person’s breath or blood sample, then a court may rule that any results obtained from testing of those samples are to be suppressed (kept out of court). Test results may also be suppressed if they were obtained in violation of the person’s constitutional rights. Without being able to present test results showing the driver’s blood or breath alcohol concentration, the prosecutor may lack the evidence they need to show the person was impaired at the time they were driving a vehicle.

· Inaccurate or inconclusive breath or blood test results: There are a number of reasons why a breath testing machine may not give an accurate result, especially if the driver has an underlying medical condition or follows a ketogenic diet. Similarly, a blood sample may not be suitable for testing if the individual who collected the sample did not follow the proper protocol in collecting, storing, or analyzing the sample. 

· No evidence of prior convictions: If the prosecutor is alleging that a person charged with DUI has one or more prior convictions, then the prosecution must be prepared to present evidence of those prior convictions. An erroneous entry on a person’s driving history or criminal record that cannot be substantiated may mean the difference between a second DUI conviction and mandatory jail time and a first DUI conviction and informal probation.

Drivers Charged With A DUI Should Seek Legal Assistance

While a first-time DUI will most likely not lead to incarceration, there are no guarantees. Even a person’s first DUI conviction, when accompanied by a high BAC, a collision involving injury, and/or other aggravating factors, may result in a jail sentence. Motorists with subsequent convictions within a 10 year period will face incarceration. Therefore, any individual who is facing a California DUI charge and who is concerned about incarceration should speak with an experienced California DUI defense lawyer about their case as soon as possible.


Low-carb diets -such as the Atkins diet or the Ketogenic diet- have been around for decades. Nonetheless, this type of diet can cause problems for California drivers. It may cause a breath test provided by a California driver who was pulled over or arrested on suspicion of a DUI to falsely show the presence of alcohol – even if the driver had not consumed any alcohol that day.

Here’s how: A low-carb diet deprives the body of glucose, an important source of fuel for the body. In the absence of this source of fuel, the body turns to its fat for fuel. The process of turning fat into fuel produces ketones. When the body produces ketones and uses them for fuel, the body is in a state of ketosis. When the body is in a state of ketosis, ketones can be detected in that person’s breath. (This explains the bad breath that some report while on a low-carb diet). These ketones have a chemical composition similar to isopropyl alcohol. Many breathalyzer testing devices cannot distinguish between isopropyl alcohol molecules and ethyl alcohol molecules.  As such, a breath testing machine used in a DUI investigation may falsely detect the presence of alcohol simply because the suspect is on a low-carb diet.

It is doubtful that the amount of ketones in anyone’s breath could be sufficient to result in a breath test result showing a blood alcohol concentration at or greater than the .08% legal limit without the person having had consumed some alcohol. However, a person who would have otherwise been below the .08% legal limit may end up with a breath test result at or greater than the legal limit if that person is in ketosis. For example, someone who is in ketosis and has a true blood alcohol concentration of .06% could potentially register at 0.08% or more.

California Vehicle Code 23612(a)(2)(A) allows drivers arrested for suspicion of a DUI to choose between submitting to a breath test or a blood test. Unless the chosen test is not available, the officer must perform the test selected by the driver. Drivers on a low-carb diet may want to avoid submitting to the breath test to avoid being stuck with a false positive result.

Any driver arrested for a DUI should immediately hire an attorney. If you are on a low-carb diet, it is crucial that you tell your attorney.

The Truth About Chemical Testing in a California DUI Investigation

Drivers who are pulled over and placed under arrest for driving under the influence will likely be required to submit to one or more chemical tests. These tests are designed to detect whether the driver has alcohol or drugs in their systems and in what quantity. The results of these chemical tests often form the backbone of a prosecutor’s case against a driver. For example, a chemical test showing a driver’ breath- or blood-alcohol concentration to be greater than .08 may be the central piece of evidence a prosecutor relies on in pursuing charges against a motorist.

Prosecutors and police officers alike want drivers and jurors to believe these chemical tests are “scientific” and “foolproof.” The truth about chemical testing in California, though, is more complicated.

Breath Tests

Breath testing on a breathalyzer machine, such as the “Intoxilyzer,” is by far the most common chemical testing requested because the testing process itself is relatively quick to perform and because it does not require someone with medical knowledge or training to assist in collecting the sample. In a breath test, the driver blows into a tube connected to the testing machine. The machine collects a sample of the person’s breath and then analyzes that sample using infrared energy and approximates the person’s alcohol concentration.

This breathalyzer chemical test is not to be confused with the roadside breathalyzer, or “Preliminary Alcohol Screening” (PAS) test that officers use when they suspect a driver is intoxicated. In California, a chemical test is required, but only after a person has been lawfully arrested on suspicion of driving under the influence. The roadside breathalyzer is not a “chemical test” in that it is not required, and considered a “field sobriety test,” which are optional.

Blood Tests

A blood test is another chemical test that may be performed during a DUI investigation. Blood tests are often considered the most reliable of the three types of chemical tests. A blood sample is drawn from the driver and is then sealed and delivered to a laboratory. At that facility, a forensic scientist analyzes the blood sample using specialized equipment to determine the alcohol concentration in the person’s blood. Despite the testing and analysis occurring in a laboratory facility, there are still opportunities for errors to occur that might render the results unreliable. Samples of blood that are not packaged properly, that are drawn too long after officers see the driver operating their car, or that are tested using defective equipment may all provide inaccurate blood alcohol content results.

Urine Tests

Urine tests are considered the least reliable of all of the chemical tests and are usually reserved for cases where the driver is suspected of being under the influence. The machines used to evaluate the urine of DUI suspects, for example, often confuses the chemical compounds of different drugs, cannot tell when the drugs were used, nor can it tell how intoxicated someone is. Fortunately, urine tests, by law, are not to be used in California as a chemical test unless both a breath test and a blood test are unavailable, which in most jurisdictions, is highly unlikely.

Which Chemical Test Should a California Driver Take?

According to California Vehicle Code 23612(a)(2)(A), drivers who are lawfully arrested on suspicion of having driven under the influence of alcohol are to be informed by the officer that the driver may choose whether to submit to a breath test or a blood test. The driver’s choice is to be honored unless the driver is unable to complete their chosen test. As stated above, only if both a breath test and a blood test are unavailable should a urine test be used.

Refusing to submit to any chemical test can have serious and negative consequences for a person’s driving privileges. Choosing to take a breath or a blood test should be made after considering the facts of the situation. While blood tests are generally more reliable, they may also be able to detect the presence of drugs in the driver’s system. Thus, if someone consumed any drugs but little or no alcohol, it may be better for them to request a breath test be performed. In addition, those laboratories who perform testing on a driver’s blood sample must preserve a sufficient amount of the sample so that the driver may obtain an independent analysis of the sample. This is known as a “blood split,” and the driver obtains the sample for independent testing through a court order.

Breath testing does not provide a driver with a sample that can be independently tested, but the problems associated with breath testing machines tend to be more significant and numerous. Thus, if a person believes they are close to or under the legal limit, a breath test result may be easier to challenge in court.

Chemical Testing is Not Dispositive in a California DUI Case

Even though law enforcement officers and prosecutors would have drivers believe otherwise, the results of a chemical test – whether a breath, blood, or urine test – are not beyond questioning. In fact, the quality of any chemical test result depends on a myriad of factors, including:

  • Whether the sample was timely collected and collected in a safe and careful manner;
  • Whether steps were taken to prevent contamination of the sample;
  • Whether the sample was appropriately stored prior to testing;
  • Whether the person analyzing the sample was adequately trained on the testing equipment and protocols;
  • Whether the testing equipment was working properly or if there were unaddressed errors in the machinery’s code or parts
  • Whether a proper observation period (if applicable) was observed to ensure the person did not belch, vomit, or put anything in their mouth before giving a breath sample

A California defense attorney with experience defending drivers from drunk driving charges can examine the facts of a particular DUI investigation and know how best to attack the chemical testing results. Samples that were collected after an unlawful arrest, that were not collected in accordance with protocols, or that were not appropriately analyzed may all be subject to suppression.

Warrantless Blood Draw on an Unconscious Driver

Earlier this year, California’s Second District Court of Appeal refused to overturn a Fontana woman’s convictions for killing six individuals in a 2014 drunken-driving accident when blood was taken from her while she was unconscious.

Olivia Culbreath was driving on the 60 Freeway in the wrong direction when she crashed into another vehicle. Culbreath herself was rendered unconscious in the wreck and six others were killed, including Culbreath’s sister. Law enforcement officers obtained a blood sample from Culbreath while she was unconscious and without first obtaining a warrant. This blood sample showed that Culbreath’s blood alcohol concentration to be nearly twice the legal limit of .08.

On appeal, Culbreath argued that the trial court impermissibly admitted the blood test results as they were obtained without a warrant. Caselaw shows the courts’ clear preference that law enforcement obtain warrants for any search, including a blood draw. However, as the Court of Appeal found, there are still situations where officers can draw a person’s blood without first obtaining a warrant.

Overview of the Fourth Amendment and DUI Blood Draws

The Fourth Amendment to the U.S. Constitution prohibits government agents from conducting “unreasonable” searches and seizures. This prohibition extends to state and local law enforcement officers as well, including local police. When searches are determined to be in violation of the Fourth Amendment, any evidence collected by law enforcement during the illegal search may be suppressed and kept from being used against the person from whom the evidence was illegally taken. In order for a search to be considered “reasonable,” law enforcement officers must generally either obtain a warrant by presenting evidence to a judge that amounts to probable, or an exception to the warrant requirement must apply.Drawing blood from a person suspected of DUI has long been recognized as a “search” that must comply with the Fourth Amendment in order to be valid. This means that officers must either obtain a warrant from a judge before drawing a DUI suspect’s blood or be able to establish that an exception applies that justifies foregoing a warrant. If they do not, the person from whom blood was taken and who is charged with DUI may be able to keep the results of the blood test from being used against them.

Exigent Circumstances is an Exception to the Warrant Requirement

An exception to the warrant requirement exists when law enforcement officers are presented with “exigent circumstances.” Simply put, “exigent circumstances” are situations in which officers do not have an adequate amount of time to obtain a warrant without seriously risking the destruction or loss of evidence. For example, officers who approach a home, who have probable cause to believe methamphetamine is inside, and who then hear the frantic, repeated flushing of a toilet inside may be able to justify a warrantless entry into the home to search for methamphetamine or evidence of methamphetamine usage. Officers may be successful in arguing that it was likely methamphetamine or other evidence would have been irretrievably lost if they did not immediately enter the home and search.

The same principles apply in the context of a DUI blood draw as the result of the case Schmerber v. California (384 U.S. 757), decided more than half a century ago. Officers who have probable cause to believe a person is driving under the influence and who believe there are exigent circumstances justifying a warrantless blood draw may proceed to do so. Officers are not left to their own devices, though, in determining whether exigent circumstances exist. For example, the 2013 U.S. Supreme Court case Missouri v. McNeely (569 U.S. 141) stated that the fact that alcohol naturally metabolizes in a person’s body – and, as a result, their alcohol concentration reduces – over time is not, standing alone, a sufficient exigent circumstance that justifies a warrantless blood draw. In other words, officers need more than just a DUI arrest to claim that there are exigent circumstances to obtain blood without a warrant, and exigent circumstances needed to determined on a case-by-case basis.

Applicability to Culbreath’s Appeal

In her appeal, Culbreath argue that officers lacked exigent circumstances permitting them to draw her blood without a warrant. The Court of Appeal disagreed. The Court pointed not just to the serious nature of the accident but also to the fact that Culbreath was unconscious at the time her blood was drawn. Calling the situation facing law enforcement officers not an emergency but a “catastrophe,” the Court of Appeal had little difficulty in finding that officers were presented with an exigent circumstance upon responding to Culbreath’s wreck.

The Court of Appeal’s decision is also in accord with the recent U.S. Supreme Court case, Mitchell v. Wisconsin (588 U.S. _____, 139 S. Ct. 2525). In Mitchell, a 5-4 majority of the Supreme Court held that law enforcement may conduct a warrantless blood draw on a driver whose unconscious condition or stupor prevents officers from seeking a breath test. In such a situation, the Court reasoned, law enforcement is unlikely to have the time to obtain a warrant before the driver’s need for medical treatment takes away any opportunity to obtain an accurate sample of blood that can be tested. Subsequently, the unconscious nature of a DUI suspect became an important factor in determining whether exigent circumstances exist to justify a warrantless blood withdrawal.

Not a Blanket Authorization for Warrantless Blood Draws

The Mitchell decision does not mean that all warrantless blood draws on drivers suspected of DUI will be upheld. Even the U.S. Supreme Court left open the possibility that a warrantless blood draw may be unreasonable in certain situations, even if the driver is unconscious. A warrantless blood draw must still be premised on probable cause. And, while the Court did not carve out specific exceptions to its holding in Mitchell, the fact that the Court was willing to acknowledge that its holding may not apply in every circumstance should encourage drivers charged with DUI following a warrantless blood draw to seek legal assistance.

Warrantless blood draws that are conducted without probable cause to believe a driver is driving under the influence, or those performed where law enforcement officers could have easily obtained a warrant, may be successfully suppressed. Deciding to file a motion to suppress and filing such a motion in a timely manner may both be difficult for individuals without legal training. An experienced DUI defense lawyer in California can assist drivers facing DUI charges in determining whether a motion to suppress blood or breath test results should be filed in their cases.

Can You Beat a California DUI on Your Own Using Your Own Evidence?

Sometimes people will go to extreme lengths and incur substantial expenses in the name of “proving” their innocence. Case in point: a man in Florida was cited for speeding through a 15-mile-per-hour school zone and given a ticket that carried a $404 fine. Rather than pay the fine, the man embarked on a mission to prove his innocence and demonstrate that the school zone lights were not engaged and flashing at the time he was ticketed. After considerable expense of time and effort, the man’s quest was ultimately unsuccessful. The court hearing his case found him guilty of speeding and ordered him to pay the fine. This was despite video evidence suggesting that the school-zone lights were malfunctioning at the time the individual was pulled over and cited.

Examples of “Do-It-Yourself” DUI Defenses

The effort this individual from Florida undertook in combating his speeding ticket may be appealing to others charged with DUI in California. Following an unjust, unlawful, or baseless DUI arrest, a person may be as committed to proving their innocence as was this individual. As a result, the person may try to:

  • Video-record themselves performing field sobriety tests sober to demonstrate that they could not perform these tests correctly even if they did not drink
  • Record statements from others at a bar or restaurant from which the person left, saying that the person was not drunk or did not appear to be impaired
  • If stopped for an equipment violation, take photographs of your vehicle to show the allegedly-faulty equipment was actually working properly
  • Investigate the officer and obtain copies of the arresting officer’s certifications, disciplinary reports, and personnel records
  • Hire experts or forensic scientists to cast doubt on the testing methods or the manner in which the person’s blood or breath sample was analyzed
  • Find inconsistencies or errors, no matter how miniscule, in the officer’s report or affidavit

Exploring these and other potential defenses can easily consume a significant amount of time and require the investment of considerable financial resources. Those who choose to take this “do-it-yourself” approach to handling their DUI case may choose to forego legal counsel, believing that these potential avenues of defense will be more effective than any assistance an attorney could provide. And while some of these DIY methods may, in fact, produce exculpatory evidence, it may still nonetheless be inadmissible for a number of reasons.

Troubles with “Do-It-Yourself” DUI Defenses

As understandable as a person’s desire to represent themselves and handle their own DUI defense may be, such efforts are fraught with peril. Most significantly, much of the “evidence” the person spends so much time and effort in securing may ultimately not be helpful at a hearing or trial because:

  • The evidence is deemed irrelevant or immaterial to the central issues of the case
  • Experts are not properly qualified in order to give an opinion in court
  • Subpoenas for records and documents are not properly drafted and timely served on the right individuals
  • Cross-examination of the officer and the prosecution’s witnesses is not conducted in a helpful or persuasive way
  • Helpful witnesses are not brought to court to testify, and their out-of-court statements become inadmissible hearsay
  • Video recordings are not properly authenticated and shown to be reliable representations of the stop or investigation

Needless to say, evidence which may help prove innocence, may not be admissible in court unless a person knows the legal intricacies of admitting evidence.

Drivers who attempt to “prove their innocence” also tend to miss opportunities to attack the credibility of the prosecution’s witnesses and evidence. For example, while searching for a witness who can testify that the driver was not drunk when they left the bar, the driver may fail to move to suppress an incriminating breath or blood test results in a timely manner. Or, while the driver is busy attempting to “reconstruct” their performance on the field sobriety tests, they may forget to request the officer’s certifications or maintenance records of the breath testing machine. Or, quite simply, they may not know what to ask and how to ask it during cross examination of the prosecutor’s witnesses.

The Alternative to “Do-It-Yourself” DUI Defense – Hire an Attorney

Not only is an attorney able to help drivers facing a DUI charge decide on an appropriate path forward in a person’s case, but an attorney can also ensure the evidence needed to support those strategies is available for use in court. This is critical, because even the most well-considered defense strategy is of no use if it does not work in the courtroom.

For these reasons, it is vital that individuals charged with driving under the influence in California seek out and hire an experienced DUI defense attorney as soon as possible. A lawyer can work with an individual charged with DUI to evaluate the various defenses available to the person and pursue those strategies that have the greatest chance for success. These may include strategies to present exculpatory information in the proper manner, attacking the admissibility or credibility of the prosecution’s evidence, or a combination of the two.

A Driver’s Rights are Also at Risk When Representing One’s Self

Another significant danger that drivers who choose to handle their own DUI cases may risk is waiving (giving up) constitutional and statutory protections often overlooked by the “pro se” (in one’s own behalf) defendant. These include rights to confront and cross-examine the prosecution’s witnesses, the right to not be compelled to testify against one’s own interests, and the right to a speedy trial before a jury. When these rights are violated or infringed upon by the prosecution, the individual must take prompt and appropriate action to assert these rights or risk losing the ability to do so.

Choose Experienced, Reputable Legal Representation

When it comes to choosing whether to represent yourself in a DUI case or whether to obtain a lawyer’s help, there really is no choice: an attorney’s assistance can make a significant difference in the outcome of your case as well as how swiftly your case may resolve. No matter how strongly a person may feel that their charges are unjust or unfounded, or how confident one is in their own advocacy skills, a lawyer’s advice and skill is necessary to ensure one’s rights are protected and charges are subjected to the toughest scrutiny.