Author Archives: admin
Being arrested for drunk driving does not mean that you will be convicted of DUI charges. However, many people do not believe they can fight DUI charges in California. Therefore, they plead guilty to DUI before talking to an experienced California DUI defense lawyer.
Only after pleading guilty to driving under the influence do they realize they have a valid defense to the charges or the plea agreement’s terms are not fair given the facts of their case. Therefore, a judge may allow a defendant to withdraw their DUI guilty plea for good cause in some situations.
Filing a Motion to Withdraw a DUI Plea in California
According to California Penal Code §1018, a defendant in a criminal case has the right to withdraw their guilty plea or no contest plea. The law applies to both misdemeanor and felony charges.
You must file a motion with the court asking the judge to allow you to withdraw your plea before you are sentenced or within six months of a probationary sentence. If a judge grants the motion, you can enter a plea of not guilty and proceed with a defense of the DUI charges.
Generally, defendants file a motion to withdraw a DUI plea when they realize that pleading guilty to drunk driving charges is not in their best interest. For example, they may have pleaded guilty because of a lack of competent legal representation or because they realize that the plea agreement’s terms will be more severe than anticipated.
Showing Good Cause for Granting a Motion to Withdraw DUI Plea in California
The court must find good cause for granting your motion to withdraw a DUI plea. The law does not allow defendants to change their minds merely because they regret pleading guilty to a crime. Good cause for changing your plea in a DUI case may arise because of:
The defendant has the burden of proving good cause by clear and convincing evidence. Clear and convincing evidence is not beyond a reasonable doubt.
It is evidence that demonstrates that it is highly probable the defendant’s arguments are true. In other words, it is substantially more likely the defendant would have entered a different plea had they known all of the facts before entering a guilty or no contest plea.
Some of the circumstances that could prove good cause for a motion to withdraw DUI plea include:
Not Understanding the Consequences of Pleading Guilty
If you were not aware of a significant consequence of your guilty plea, the judge might find good cause exists for allowing you to change your DUI plea. For example, good cause could exist when you were unaware that you would lose your job or a professional license if you pled guilty to drunk driving charges.
Another situation for good cause might be you did not understand there were mandatory jail sentences associated with the DUI charges, or pleading guilty or no contest could result in being deported from the country.
Prejudiced Because of a Language Barrier
You need to understand the court’s instructions regarding a plea. If you use an interpreter during the hearing to enter a plea of guilty or no contest, there could be good cause to grant a motion to withdraw a DUI plea. However, you must generally show that the interpreter was not solely interpreting for you when you entered the plea.
Not Being Represented by a Lawyer When Entering a Plea
Good cause may exist to withdraw a DUI plea if you did not have an attorney representing you during the hearing AND the judge did not explain that you had the right to counsel. Proving good cause rests with the judge’s instructions during the hearing. Representing yourself is not good cause for withdrawing a plea IF the judge told you that you had the right to have an attorney represent you.
Not Having Competent Legal Representation
You have the right to legal representation. You also have the right to competent legal representation. If your lawyer was ineffective, the court might find good cause to allow you to change your plea in a DUI case.
Ineffective legal counsel might include:
- Failure to file appropriate motions with the court
- Failing to investigate the circumstances of the DUI stop and DUI arrest
- Failing to present evidence of mitigating circumstances to lower the sentence
- Failure to challenge chemical tests when evidence is available for an effective challenge
- Failing to present available defenses
- Failure to explain the charges and potential consequences of a DUI conviction
Proving your attorney failed to provide services that met the reasonable standard of legal representation can be challenging. However, it is possible when a lawyer fails to advise the client of their rights or fails to provide an adequate defense to the charges.
Coercion or Harassment to Enter a Plea
Defendants must freely enter a plea of guilty or no contest. However, if there are any signs that the defendant was coerced, threatened, or forced to enter a guilty or no contest plea, the court generally grants the motion to withdraw the DUI plea. The coercion may come from law enforcement officers, the prosecutor, or any other party.
What Happens if the Court Allows Me to Withdraw My DUI Plea?
If you win your motion to withdraw the DUI plea, you can enter a not guilty plea. Your not guilty plea nullifies any plea agreement you might have had in your DUI case. Then, you and your California DUI defense attorney can negotiate a new plea agreement or proceed to trial.
You may have one or more DUI defenses that could result in an acquittal, dismissal of charges, or more favorable plea agreement terms, depending on the facts of your case. Potential DUI defenses include, but are not limited to:
- Challenging the results of chemical blood alcohol tests because the blood fermented, the samples were contaminated, or errors were made during the collection or testing
- Your ability to operate a motor vehicle was not impaired by alcohol at the time of your arrest
- A health condition caused a false BAC level, including diabetes, acid reflux, and GERD
- Rising blood alcohol levels after your DUI arrest caused the high BAC test results
- The arresting officer did not have probable cause for the DUI arrest
- You were stopped at an illegal DU checkpoint, or the officer lacked reasonable suspicion to pull you over
- A low-carb diet or ketosis caused false BAC results
- You have a medical condition that caused you to appear intoxicated, such as a brain condition, diabetes, or epilepsy
- The arresting officer relied on non-standardized field sobriety tests for probable cause or failed to provide adequate instructions for the standardized field sobriety tests
- Environmental factors caused you to fail the field sobriety tests
A strong defense can result in reasonable doubt for a jury. Additionally, raising one or more potential defenses could encourage a prosecutor to agree to reduce the DUI charges attempted DUI or reckless driving to avoid jail time now and a priorable offense in the future.
What Happens if the Judge Denies My Motion to Withdraw DUI Plea?
If the judge denies your motions to change your plea in a DUI case, your case proceeds to sentencing. The judge enters a sentence based on the facts of your DUI case. However, you have options.
You could appeal the judge’s decision to deny the motion to allow you to withdraw your DUI plea. However, you must show that the judge made a legal error or abused their discretion to win an appeal.
If you cannot avoid a DUI sentence, you might want to consider expungement. It is possible to have a DUI expunged if you meet the following requirements:
- Your case was heard in state court
- You were not sentenced to serve time in state prison
- It has been one year since your conviction if you were not ordered to serve probation
- You completed probation without any violations
- You completed all terms of your sentence, including DUI school, alcohol treatment programs, community service, paying restitution, payment of fines, etc.
- You are not currently on probation, in jail for another offense, or charged with another criminal offense
Many DUI convictions in California meet the requirements for expungement. However, it is important to note that a DUI expungement does not wipe your record clean for future DUI convictions. If you are convicted of drunk driving within ten years of having a DUI expunged, you face enhanced penalties even though the court expunged the prior DUI conviction.
How Can You Avoid the Necessity of a Motion to Withdraw DUI Plea?
Talk with an experienced California DUI defense lawyer before entering a guilty plea or no contest plea. You have the right to legal counsel when charged with a crime. Exercise that right before you agree to a plea deal.
The prosecution does not explain your legal rights nor tell you when the case against you is weak. You need a DUI lawyer to investigate the charges against you to determine whether a plea agreement is in your best interest. Dealing with a charge of driving under the influence without a lawyer could result in more jail time, higher fines, and additional penalties.
Being convicted of driving under the influence in California does not always mean that you will serve jail time. Not all DUI sentences are meant to exclusively punish drunk drivers. Some sentences are meant to rehabilitate drunk drivers so they do not commit the same crime in the future.
Therefore, even if you serve jail time, you could be granted a work furlough to keep your job. It is in the public interest for offenders to maintain employment during incarceration for DUI so they can return to society as gainfully employed individuals. However, there are several things you need to know about work furlough after a DUI conviction before agreeing to participate in a work furlough program.
What is Meant by Work Furlough in a California DUI Case?
All DUI offenses in California have the potential for jail time. Any time spent in jail could result in job loss. However, sentencing all drunk drivers to jail time might not be in the best interest of the general public.
Jail sentences are intended to punish offenders for criminal acts. Incarcerating offenders separates dangerous individuals from law-abiding citizens. However, many drunk drivers are not violent criminals. Other than being convicted of driving under the influence, they are law-abiding, taxpaying individuals with jobs and families.
Therefore, California offers alternatives to jail time for some DUI offenders. Work furlough allows a person convicted of drunk driving to continue working their job instead of sitting in jail all day. Each 8-hour day they work at an existing job counts toward one day in jail. The job can be anything, as long as you had the job when you were sentenced for a DUI offense.
Do You Stay in Jail During a Work Furlough Program?
No, you generally are not required to spend your nights in jail during work furlough. However, you are not free to spend your off-time hours wherever you please. Generally, most work furlough programs require individuals to reside in dormitory facilities when they are not at work.
The dormitory facilities provide a place to sleep, eat, and bathe. Even though the state requires you to stay at the dormitory during a work furlough program, the state requires you to pay a fee for living at the facility. The court may discount the fee based on your income.
Additionally, the state requires you to provide transportation to and from your job. Therefore, if you lost your driving privileges because of the DUI charges, you must arrange for public transportation, rideshares, or other ways to get to and from your job from the dormitory facility. Taking public transportation is not an excuse for being late to work or returning to the dormitory facility.
What Are the Benefits of a Work Furlough Program for DUI Offenses?
The most obvious benefits for work furlough are avoiding spending time in jail and keeping your job while serving your DUI sentence. Missing even a few days or a month of time from work could result in job loss. The work furlough program avoids unemployment because of a DUI conviction.
Even though you must pay a fee for work furlough, you continue to earn a living while serving your DUI sentence. That means you can continue to pay your bills, which means you can keep your car and your home. Some DUI offenders face foreclosure, repossession, and debt collection actions because they served time in jail for a drunk driving conviction.
How Do I Know if I Am Eligible for DUI Work Furlough?
Talk with an experienced California DUI defense lawyer about your case. Unfortunately, there are no guarantees that you will receive work furlough instead of jail time for a DUI conviction. However, having an experienced lawyer fighting for you can increase the chance of a favorable outcome.
A work furlough could be a part of a negotiated plea agreement for a drunk driving offense. The prosecutor may agree to recommend work furlough in exchange for a guilty plea. The agreement benefits the public by punishing a criminal offender while helping you keep your job and get your life back on track after a DUI.
How Does Work Furlough Differ from Work Release?
Work release is different from work furlough. Work release is a program that allows a convicted person to perform hard work to benefit the community instead of sitting in a jail cell. Today, work release may include hard labor, but it may also include work that improves the community. For example, work release may include cleaning garbage from roadsides and parks.
However, work release may include other activities according to Assembly Bill 2127. Individuals may now receive credit for work release if they:
- Attend an alcohol or drug treatment program
- Complete life skills and training classes
- Attending vocational training classes or programs
- Complete education programs, such as GED courses
Under the current law, a full day working toward any of these activities counts as a full day in jail. Individuals must pay an administrative fee and provide their own transportation. Part-time work release may include weekend-only programs that allow you to continue working a full-time job during the week.
What Are the Punishments for a DUI Conviction in California?
A first-time DUI conviction can result in up to six months in jail. Additionally, you may pay fines and assessments totaling $1,500 and $2,000. The judge may also suspend driving privileges, order up to five years of summary probation, require DUI school, and require installation of an ignition interlock device for six months.
The penalties increase if you have a prior DUI conviction within the past ten years or any felony DUI conviction. You face more time in jail, higher fines, and longer periods of driving suspension, DUI school, and alcohol treatment programs.
Avoiding a DUI conviction begins with building a strong defense against drunk driving charges. A California DUI lawyer can help by investigating your DUI case and gathering evidence proving innocence, mitigating circumstances, or police misconduct.
Potential Defense to Driving Under the Influence in California
California Vehicle Code §23152 prohibits a driver from:
- Operating a motor vehicle with a BAC of .08% or higher
- Operating a motor vehicle under the influence of any alcoholic beverage
The law assumes you cannot operate a motor vehicle safely once your BAC reaches .08%. However, driving with any alcohol in your system could result in DUI charges. The prosecution would then need to prove that the alcohol in your system impaired your ability to drive a vehicle safely even though the BAC was below the legal limit.
Therefore, a common defense to driving under the influence charges is that you were not impaired at the time of your DUI arrest. Your attorney may argue that a medical condition made you appear intoxicated when dealing with the police officer or taking the field sobriety tests. Another defense would be that a medical condition caused you to appear drunk, such as epilepsy, brain damage, or an extremely low sugar level from diabetes.
If your BAC was above the legal limit, there are still options for defending DUI charges. You may challenge the results of a breathalyzer or chemical test in several ways, including:
- The machine malfunctioned because of a defect
- The device was not calibrated correctly
- Police officers did not wait the specified time or monitor you for the specific time before conducting a chemical test
- The results of a blood test are inaccurate because of blood fermentation
- The use of contaminated samples and failure to maintain chain of custody
- Motions challenging breath tests based on partition ratios
- The lab technicians or police officers made critical mistakes that resulted in inaccurate results
In addition to challenging chemical tests and whether you were impaired, there are also DUI defenses related to violations of your civil rights. For example, if the police officer lacked probable cause for a DUI stop or DUI arrest, the judge could throw out evidence obtained by the officers because of an illegal search and seizure. Your attorney carefully analyzes all evidence against you and the circumstances of your case to determine the best defense strategy to use.
Pleading Guilty to DUI Charges in California
In some situations, it might be in your best interest to negotiate a plea deal instead of going to trial on charges of driving under the influence. However, it is not wise to negotiate a plea agreement without a lawyer.
The prosecutor is not a trusted source of legal advice. It is their job to obtain a conviction. Therefore, the prosecutor in your case will not tell you if the evidence against you is weak or if you have a valid defense against DUI charges. Instead, the prosecutor offers a plea deal that might result in harsher penalties than you deserve.
An experienced California DUI defense attorney emphasizes the problems with the case and mitigating circumstances that could go against the prosecution during a trial. The attorney uses this information to negotiate fair terms for a plea agreement. You have the right to legal counsel, and you should exercise that right if you are arrested for DUI in California.
In its decision in Lange v. California, the United States Supreme Court ruled that “hot pursuit” of a subject does not always give police officers cause to violate Fourth Amendment protections. However, the court made it clear that the specific circumstances of this case were their basis for the decision. Therefore, police officers might have probable cause for violating the Fourth Amendment in other cases.
What Was the Story Behind Lange v. California?
Arthur Lange drove past a police officer with his windows rolled down, honking his horn, and blaring music. The police officer began following Lange. Mr. Lange ignored the blue lights and the officer’s loud commands to pull over.
The police officer followed Mr. Lange home, where Mr. Lange exited his vehicle in the driveway and entered his garage. The officer suspected Mr. Lange was intoxicated and followed him into the garage.
In the garage, the police officer questioned Mr. Lange. After observing signs of intoxication, the officer administered field sobriety tests, which Mr. Lange failed. The police officer arrested Mr. Lange and transported him to the police station. After the arrest, the police obtained a blood sample for an evidentiary chemical test. The results showed that Mr. Lange’s blood alcohol content (BAC) was three times the legal limit.
The police officer arrested Mr. Lange on a misdemeanor DUI charge.
Protection From Illegal Search and Seizure Under the Fourth Amendment
The Fourth Amendment to the United States Constitution protects individuals from illegal searches and seizures. It prevents the police from excessively intruding into a citizen’s life or property. According to the Fourth Amendment, you have the right to be secure in your “person, house, papers, and effects.”
In other words, you have the right not to be subjected to unreasonable searches or seizures by the government. Furthermore, if the court issues a search warrant, the law requires probable cause to support the warrant. The warrant must also describe the place, person, or things subject to the search.
A search of your home without a warrant is generally presumed unreasonable. Therefore, the state needs to establish that the officer had exigent circumstances for the warrantless search or the search falls into one of the narrowly defined exceptions. One exception would be the search is incident to a lawful arrest.
Filing a Motion to Suppress Evidence Based on a Violation of His Fourth Amendment Rights
Mr. Lange’s attorney filed a motion to suppress evidence obtained after the police officer entered the garage. The motion argued that the police officer violated Mr. Lange’s Fourth Amendment right against warrantless searches and seizures.
The trial court and the California Court of Appeal for the First Appellate District denied the motion to suppress evidence. The Court of Appeal stated that failure to pull over immediately for the officer when he flashed his lights created probable cause for the arrest. Therefore, Mr. Lange could not avoid the arrest by going inside. The court ruled that the pursuit of a suspect for a misdemeanor charge is always permitted under the exception for exigent circumstances to the warrant requirement.
Mr. Lange appealed the decision to the United States Supreme Court.
The United States Supreme Court Ruled in Favor of Mr. Lange
In a unanimous decision, the Supreme Court rejected the exigent circumstances argument by the lower court. They found that pursuing a fleeing misdemeanor suspect does not always give the police officer the right to enter a home without a warrant.
Instead, the Court held that cases involving the pursuit of a suspect on an alleged misdemeanor charge must be decided on a case-by-case basis. Furthermore, the seriousness of the alleged offense is an important factor when deciding whether exigent circumstances exist to override the requirement for a warrant. In other words, a minor offense did not justify ignoring the protections provided by the Fourth Amendment.
How Does the Lange Decision Impact DUI Cases in California?
The United States Supreme Court reaffirmed the protections against unreasonable actions by the police under the Fourth Amendment. In addition, it helps strengthen the protection that prevents police officers from entering private homes without a warrant merely because they are suspicious.
On the other hand, there are instances in which exigency would apply and allow the officers to ignore the warrant requirements under the Fourth Amendment. Examples of exigent circumstances might include:
- Imminent harm to others
- A threat to the police officer
- Likely destruction of evidence
- Fleeing from a scene
All of the circumstances need to be considered to determine if the situation justifies proceeding without a warrant. The court made it clear that pursuing a suspect does not always give the police officer the right to trample over the Fourth Amendment protections.
The Supreme Court has previously ruled that dissipation of alcohol in the blood is not an exigent circumstance for illegal entry into a person’s home. The offense was minor, and the person was not likely to flee.
Likewise, when the alleged crime is minor and there is no evidence that the person will flee again, the police can take their time to get a warrant. An exception is in drug cases where the person might destroy evidence.
What Should I Do if the Police Performed an Illegal Search?
Defendants who believe their civil rights were violated should contact a California DUI defense attorney. The attorney can review the case to determine whether a motion to suppress evidence should be filed with the court.
If the court rules that the police officers violated your civil rights, the court may find that the evidence obtained during the illegal search and seizure is inadmissible in court. Without that evidence, the prosecution might not be able to prove the legal elements of a drunk driving charge. Therefore, your case could be dismissed.
California DUI Penalties
Many of the drunk driving charges in California are misdemeanor offenses, unless you have several prior DUI convictions, a prior felony, you cause injuries, or there are aggravating circumstances. However, the DUI penalties for a misdemeanor DUI charge can still be severe.
For a first-offense DUI in California, the judge could sentence you to:
- Incarceration in county jail for up to six months
- Assessments and fines between $1,500 and $2,000
- Six months suspended driver’s license (the DMV could suspend it for longer if you refused a post-arrest evidentiary chemical test)
- Summary (informal) probation for three to five years
- DUI school or three to nine months
If your case involves aggravating circumstances, the judge could increase the penalties. For example, you had a BAC of .15% or higher, or you are under the age of 21 years.
The penalties for DUI convictions increase as you have more DUIs on your record. You may be required to install an ignition interlock device (IID) and attend a 30 month DUI education program. The only way to avoid jail and other penalties is to beat the DUI charges.
Defense to DUI Charges in California
You can fight DUI charges. However, the circumstances and facts of your case determine what type of defense you can use. Hiring an experienced California DUI defense lawyer is the first step.
The prosecution has the burden of proving you are guilty of the charges against you. Therefore, do not help them with their job. Talking to the police or the prosecutor without an attorney is never in your best interest. You will not talk your way out of the arrest. You will only give the state more evidence to use against you.
Instead, focus on working with a California DUI lawyer to build a defense against the drunk driving charges. Examples of defenses to charges of driving under the influence include:
- Breathalyzer errors, including improper procedure, environmental factors, health conditions, and device malfunction
- Health conditions that could cause a false BAC level or mimic intoxication, including diabetes, epilepsy, brain injuries, acid reflux, GERD, and hiatal hernia
- DUI blood test errors, including blood contamination, improper withdrawal, improper storage, and blood fermentation
- Lack of probable cause for the DUI stop or arrest
- Inaccuracy of field sobriety tests, including environmental conditions, police intimidation, lack of proper instructions, health conditions, and non-standard tests
- You were not impaired by alcohol – your BAC was under the legal limit
- Challenging the results of an evidentiary breath test based on partition ratios
- The DUI checkpoint did not comply with the legal requirements
- You were not operating the motor vehicle (you were sitting in the car or sleeping in the car)
- Rising blood alcohol because the chemical test was performed when your body was still absorbing the alcohol
There could be other defenses to your DUI charges depending on the unique facts of your case. If there is no chance of the DUI charges being dropped, an experienced DUI defense attorney can use the evidence in your favor to negotiate a plea agreement.
The plea agreement may include reduced charges and reduced sentences. An advantage of negotiating reduced charges is that you might be able to keep your driver’s license. Your insurance may not be as severely impacted. You might avoid jail. The charge might not count against you if you are arrested again for DUI.
Before pleading guilty to DUI charges, talk with a lawyer about your options so you can make the decision that is best for you.
DUI breath tests are standard tools used to prove someone was driving under the influence of alcohol in California. However, breathalyzer tests are not always accurate. Furthermore, the breathalyzer does not measure the amount of alcohol in your bloodstream, so there is the opportunity to contest the accuracy with partition ratios.
How Does a Breath Test Work for a California DUI?
Police officers use two types of breath tests to determine if a driver was intoxicated while driving. First, the roadside preliminary alcohol screening (PAS) test is a roadside breathalyzer. It is given during a DUI stop and investigation.
You can refuse the PAS test without penalty unless you are under 21 years of age or on DUI probation. You can also refuse to take a cheek swab or perform the field sobriety tests too. However, you cannot refuse the second breath test without penalty.
The second breath test is a post-arrest evidentiary breath test. You cannot refuse a chemical BAC test after your arrest without penalty. These are evidentiary tests, meaning the state can use the results in court.
Most drivers choose between the post-arrest breath test and the blood test. However, the person may be required to take a blood test if the officers believe they have drugs in their system (DUID), they cannot blow hard enough for the breath test, or the driver is unconscious or in a medical facility where a breath test is not available.
How Does a Breathalyzer Test Work?
Understanding how to challenge the results of a breath alcohol test using partition ratios in California helps to understand how breath tests work. DUI breath tests do not measure the blood alcohol level in your bloodstream. Instead, they measure the amount of alcohol in the deep lung air.
Deep lung air comes from the alveoli located deep within the lungs. Tiny blood vessels surround the alveoli. The blood vessels allow oxygen to pass from the lungs into the bloodstream and allow carbon dioxide and other substances, like alcohol, to pass from the blood to the alveoli.
The alcohol concentration is highest in the alveoli. Therefore, an evidentiary breath test uses the air from this area to test for alcohol in your system. However, you must blow very hard to get the air from the alveoli into the machine. Some individuals may not be able to blow hard enough and might need a blood test.
How Can the Partition Ratio Lead to Inaccurate BAC Levels?
Since the breath test measures the amount of alcohol in your lungs, the results must be converted to a rough equivalent of a BAC. The mathematical conversion is known as the partition ratio.
California laws set the partition ratio for breath-testing at 2,100 to 1. In other words, the amount of alcohol in 2,100 milliliters of breath is equal to the amount of alcohol in 1 milliliter of blood.
However, everyone’s body is unique. Your partition ratio may differ from the fixed partition rate because everyone’s lungs absorb the alcohol at a different rate.
How Does the Partition Ratio Impact a DUI Case?
Under California Vehicle Code §23152, it is unlawful for you to operate a motor vehicle if:
- Your BAC is .08% or higher (per se charge) OR
- You are under the influence of any alcoholic beverage (generic dui charge)
A per se DUI is where the person’s BAC is .08% or higher. The law presumes that you were too drunk to drive if you have a BAC over the legal limit. Therefore, if your breath test shows a BAC of .08% or higher, you are presumed to be too impaired to operate a motor vehicle.
However, if your BAC is below the legal limit, you are charged with a generic DUI. The prosecution must show that the alcohol in your system actually impaired your ability to operate the motor vehicle safely. In cases with BAC close to the legal limit, the prosecutor might get a conviction if there is other evidence the driver was intoxicated.
On the other hand, if the person’s partition rate is not 2,100:1, the person’s BAC level might be much lower than the level alleged by the prosecution. If so, the person may not have been impaired by alcohol when they were pulled over for a DUI stop.
Challenging the Results of a BAC Level Using Partition Ratios
In July 2009, the California Supreme Court decided an important case that changed how some people defend themselves against the generic DUI charge. The decision in People v. McNeal allows a defendant to contest the accuracy of a breath test by submitting evidence their partition ratios are not equal to the ratio set by law. Defendants may also challenge the results by offering evidence proving the variance of partition ratios among the general public.
In a borderline BAC case, offering evidence that the defendant’s individual partition ratio is different from the state’s ratio could create reasonable doubt for the jury. Especially when there is no substantial evidence other than the breath test that proves the defendant was intoxicated while driving.
If your DUI case relies on the results of a breath test, talk with a California DUI defense lawyer before accepting a plea deal. You may have grounds for challenging the results to prove you were not drunk while driving.
Other Ways to Challenge an Evidentiary Breath Test in a DUI Case
In addition to challenging the accuracy of the breath test results based on partition ratios, there are other ways to attack a breath test. For example, the California Code of Regulations Title 17 sets the rules for DUI chemical testing procedures. As a result, the samples could be invalid when labs and law enforcement officers do not follow these rules.
There are many rules under Title 17 for performing a breathalyzer test after a DUI arrest. Some important rules include:
- The device must be calibrated every 150 uses or ten days, whichever comes first
- The person giving the breathalyzer test must be trained to use the specific device
- The DUI breathalyzer device must be in good working order
- Air from deep within the lungs must be collected to perform the test
- The driver must be watched continuously for 15 minutes before the DUI breath test to ensure they did not eat, drink, or put anything in their mouth, smoke, vomit, burp, or regurgitate
- The lab must keep detailed records of the personnel, equipment calibration, and test results
- Two breath samples do not differ by more than 0.02 grams per 100 milliliters of blood must be obtained
Violation of any of the above Title 17 rules could result in inaccurate BAC levels that are not as high as they appear. A DUI defense lawyer reviews the testing procedures and records to determine if the lab or law enforcement agency made errors that could support a challenge to the breath test results.
Medical Conditions and Other Factors Could Result in Incorrect BAC Breath Test Results
In addition to problems with the machine and errors made by law enforcement agents or lab workers, a person’s medical conditions could affect the accuracy of a breath test. Specific health conditions can result in falsely high BAC levels.
Examples of medical conditions or other factors that could affect the BAC results from a breathalyzer include:
- Gastrointestinal reflux disease (GERD)
- Low carb/high protein diets
- Residual mouth alcohol
- Inhaling acetone and other volatile chemicals
- Rising blood alcohol levels
- Medication, food, or mouthwash caused a false high
- Dentures caused the alcohol to pool in the mouth
There are many ways to challenge an evidentiary breath test. It is worthwhile, especially in cases where the BAC level may be just below the legal limit. Challenging the accuracy of the test can help jurors accept your argument that you might have had some alcohol, but you were not impaired to drive.
What Should I Do After a DUI Arrest in California?
Do not panic. You have not been convicted of driving under the influence. However, the matter is extremely serious. The punishments for a DUI conviction in California can be harsh.
Therefore, do not talk to the police. The police officers and the prosecutor already believe you are guilty. Any information you give them only makes their case against you stronger.
Instead, remain quiet until you speak with a California DUI defense attorney. Your attorney discusses the facts of your case, your legal rights, potential defenses, and the best options you have for fighting the DUI charges.
You might want to fight the drunk driving charges based on your attorney’s advice. You might have a solid challenge to the evidentiary breath test results based on partition ratios or errors regarding the test.
If not, your attorney works to negotiate the best plea bargain possible. A prosecutor may be willing to work out a better deal with an attorney than directly with you.
The prosecutor knows if a deal is not struck, the case goes to trial. That might not be in the prosecutor’s best interest. Furthermore, the prosecutor has hundreds of cases to handle. They want a win, not a hard fight for a potential acquittal.
Ensure you know your legal rights after a DUI arrest to reduce the chance of jail time and other penalties.
The judge in your DUI case could impose several different penalties for a guilty plea or guilty verdict. A DUI conviction can lead to jail time, fines, probation, suspended license, DUI school, and summary probation. You may also be ordered to wear a SCRAM device.
What is a SCRAM Device?
You must wear a SCRAM (Secure Continuous Remote Alcohol Monitor) device continuously if the judge imposes this punishment for DUI. The device monitors your blood alcohol content (BAC) through your sweat. The process is called transdermal alcohol testing.
When you consume alcohol, a small portion is eliminated through your urine. However, a small about leaves the body through your breath, saliva, and sweat.
DUI breathalyzer tests pick up on the alcohol on your breath. SCRAM devices sense alcohol that escapes through your skin (sweat).
The device sends the information to a monitoring center every 30 minutes. If the SCRAM device detects alcohol in your system, the court is notified of the violation.
Alcohol Monitoring Systems, Inc. developed the device. You wear the monitor around the ankle like a bracelet. It is water-proof and tamper-proof.
Adding House Arrest to the Alcohol Monitoring System
If a person is sentenced to house arrest instead of jail or prison, the court may order a SCRAMx device. The device monitors the person’s BAC levels and monitors the person’s exact location. Therefore, the court knows precisely when you leave your home and where you go when you leave.
What Types of Cases Does the Court Order SCRAM Devices?
SCRAM devices are used in cases when the defendant is ordered not to consume alcohol as a condition of probation or house arrest. In addition, judges may order alcohol monitoring for repeat offenders or in DUI cases involving alcohol dependence or addiction.
SCRAM devices may be used in other cases. Examples of cases that might result in a sentence to wear a SCRAM device include, but are not limited to:
- California drug court
- As a condition of bail, early parole, or pre-trial supervision
- California Veterans court
- Supervision and support for re-entry programs
- Offenders convicted of underage drinking in California
- Military diversion programs
- As a condition of release or probation for domestic violence offenders
In many criminal cases, a common condition of probation is not using alcohol or drugs. SCRAM devices allow the courts to monitor the condition without the need for random alcohol tests through the probation office or other government agencies.
What is the Average Term Someone Wears a SCRAM Device in California?
The seriousness of the DUI offense is a significant factor in the duration of your SCRAM monitoring. Additionally, the judge considers other factors such as your criminal record, prior DUI offenses, and your dependency on alcohol. As a result, you could be sentenced to wear the SCRAM device for a month, year, or more.
Does the Court Give Me the SCRAM Device to Wear?
No, the court does not have these devices on hand. If the court sentences you to BAC monitoring, you must contact an authorized SCRAM service provider in California. You arrange to have the monitor placed on your ankle through the service provider.
The provider instructs you not to remove the device or tamper with the device. Getting a SCRAM device off your ankle is possible, but it is a challenge.
However, if you tamper with a SCRAM device, the monitoring system receives notice and lets the court know what you are doing. As a result, the judge may schedule a hearing and sentence you to jail time instead of BAC monitoring.
How Much Does it Cost for a SCRAM Device? Who Pays for it?
You are responsible for paying for the monitor and the daily monitoring fee. Generally, it costs between $50 to $100 to install a SCRAM device on your ankle. After that, you must pay the daily monitoring fee.
Monitoring fees for a SCRAM device can be as much as $12 per day for BAC monitoring. The fee increases for BAC and position monitoring. You may pay up to $15 a day for BAC monitoring and house arrest.
The court may absorb the cost of the service for indigent offenders. Also, the cost may vary based on how much income the person receives each month.
If the judge sentences you to SCRAM monitoring for a year, you could pay as much as $4,400 for the service.
Does Wearing a SCRAM Device Give a Defendant Credit for Time Served?
Monitoring for BAC with a SCRAM device does not equal time served. However, if you are sentenced to house arrest with a SCRAM device, the judge may give you credit for time served.
House arrest means that you cannot leave your home except for specific errands approved by the court. Therefore, house arrest is a form of incarceration.
You may be allowed to work or go to school. If so, the court sets a curfew that you must obey. Also, the court restricts the places you may go while leaving home for work or school.
What Should I Do if Someone Is Drinking Alcohol Around Me?
The SCRAM device can tell the difference between alcohol in your system and alcohol in the environment. However, your agreement with the service provider generally states that you will not use alcohol or have alcohol around the bracelet.
Medications Containing Alcohol Should Not Impact the Device
The SCRAM monitor generally does not produce a false positive if you take medication with alcohol or use other products that might contain small amounts of alcohol, such as breath sprays, mouthwashes, and other consumer products.
However, if you consume enough of these products to become intoxicated, you violated the terms of your probation. Therefore, the judge may order you to be picked up and placed in jail.
SCRAM Devices vs. IIDs
Courts often order DUI offenders to install ignition interlock devices (IIDs) in their vehicles as a penalty for driving under the influence or a condition of receiving a restricted driver’s license. An IID prevents someone who is intoxicated from driving. The IID prevents the vehicle from starting if the driver has any alcohol on his breath when he blows into the device.
However, an IID does not prevent someone from consuming alcohol. In those cases, the court may order a SCRAM device instead of an IID to ensure the person does not use alcohol during summary probation or house arrest.
What Are the Other Penalties for Driving Under the Influence in California?
California places strict penalties on drunk drivers. A DUI is a priorable offense. Another DUI conviction within ten years of a prior conviction enhances the penalties for the current offense. Felony DUI charges have no time limits.
Therefore, the penalties for a second DUI conviction within ten years are harsher than those for a first-time DUI conviction. Likewise, third, fourth, and subsequent drunk driving convictions carry much harsher penalties than a first or second-time DUI conviction.
For example, the potential penalties for a first-time DUI conviction in California include, but might not be limited to:
- A jail sentence of up to six months
- Fines and assessments between $1,500 and $2,000
- Summary probation for three to five years
- Suspension of driving privileges for six months (a DMV administration suspension could be longer)
- Attendance at DUI school for three to nine months
The above penalties apply to a first-time DUI misdemeanor charge. However, if the court finds aggravating factors in your case, it could order enhanced penalties. Aggravating factors include, but are not limited to underage drinking and driving, refusing to submit to a chemical test, a BAC of .15% or higher, or having a child under 14 years old in the car.
Now, assume that this is your third DUI conviction within ten years. The penalties for a third-time DUI conviction include:
- Summary probation for three to five years
- At least 120 days in county jail, but could be up to one year
- Fines and assessments between $2,500 to $3,000
- 30-month DUI education program
- Install an IID for two years
- Driver’s license revocation for three years (may qualify for a restricted driver’s license after 18 months or right away with an IID)
As with a first-time DUI offense, if the judge finds aggravating factors present, your penalties for a DUI conviction may increase significantly.
Furthermore, a DUI that caused serious injuries may increase to a felony charge. The penalties for felony DUI become much more severe.
What Should I Do if I Am Arrested for Driving Under the Influence in California?
Do not assume that you are guilty of DUI if the police arrest you for drunk driving. An arrest is not a guilty verdict. The state must prove its case under California drunk driving laws. According to California Vehicle Code §23152, it is unlawful for a person to:
- Operate a motor vehicle with a blood alcohol content of .08% or higher (the legal limit)
- Operate a motor vehicle under the influence of alcohol
If your BAC was below .08%, a California DUI criminal defense lawyer might argue you were not under the influence of alcohol while driving. There could also be other defenses to DUI such as:
- Police officers lacked probable cause for a DUI stop or arrest
- The police administer the field sobriety tests incorrectly
- A medical condition or health condition caused a false positive or a high BAC reading
- The samples for blood or urine testing were contaminated
- The BAC machine malfunctioned, or the police officers failed to calibrate it correctly
- You were not driving the motor vehicle at the time of your DUI arrest (you were asleep in the car or sitting in the car)
Before you plead guilty to DUI charges, it is best to consult with an experienced California DUI defense lawyer.
A DUI lawyer may be able to have the DUI charges dismissed. If not, the attorney may negotiate a plea deal that includes reduced charges and/or penalties. If possible, your DUI defense attorney may be able to keep you out of jail by arguing for a SCRAM device.