Category Archives: DUI Charge

Understanding CA Penal Code 21A – “Attempted DUI”

Driving under the influence can result in a serious criminal charge in California. However, you do not have to drive an automobile to be charged with a crime. Your intent to drive while intoxicated could result in fines and jail time. 

An attempt to commit a crime is defined as taking steps to commit the crime even though you are unsuccessful. Under California Penal Coe 21A, an attempt to commit a crime has two elements:

  • A specific intent to commit the crime
  • A direct step toward committing the crime 

An attempted DUI is less serious than driving under the influence. However, it is a criminal charge, and you should treat the matter seriously. Because you could go to jail, it is wise to seek legal counsel from an experienced California DUI defense lawyer.

What is Considered Intent to Commit DUI?

Intent means that you were drunk and intended to operate a motor vehicle in that condition. For example, a police officer detained you after you got behind the wheel but before you could drive away. Another example would be stating that you would drive home after drinking alcohol at a friend’s house or a bar.

Any indication you give that you will drive a vehicle after consuming alcohol could be construed as intent to commit DUI. For example, picking up your car keys and heading toward your vehicle could qualify as intent to commit DUI.

What is Considered Attempt to Commit DUI?

An attempt must be a direct action you take to drive under the influence of alcohol or drugs. It goes beyond merely stating that you intend to drive while intoxicated. 

For example, you open your car door to enter the vehicle or walk toward your car with your keys. At that point, you have both intent and a direct step to commit DUI. Intent and attempt can occur together, but intent without a direct step toward committing the crime would not be sufficient to convict under Penal Code 21A.

When Do Police Officers Charge a Person with Attempted DUI?

Attempted DUI is generally used when a person is found drunk in a parked vehicle or walking toward a parked vehicle. The prosecution may also offer attempted DUI as part of a plea bargain.

What is the Sentence for Attempted DUI?

California Penal Code 664 states that the penalties for an attempted crime are one-half of the potential fine and one-half of the potential jail sentence for the actual crime. Therefore, if you are convicted of attempted DUI, the court orders you to pay one-half of the fine you would have paid had you been convicted of DUI. In addition, you also serve one-half of the jail sentence for a DUI conviction. 

However, there is no requirement to suspend your driver’s license or attend DUI school. In addition, attempted DUI will not count as a prior DUI offense if the police arrest you for drunk driving in the future. Therefore, negotiating a plea deal for attempted DUI is much better than being convicted of drunk driving in California.

Are There Defenses to Attempted DUI in California?

You could raise several defenses to attempted DUI charges in California. Some defenses your attorney may argue include:

  • You were not intoxicated at the time of the arrest 
  • You did not intend to operate a vehicle under the influence of alcohol
  • There is no evidence of a direct step toward driving while intoxicated 
  • You abandoned your plan to drive your vehicle after consuming alcohol or taking drugs
  • The prosecution has insufficient evidence to prove both intent and attempt 
  • The arresting officer violated your civil rights by arresting you without probable cause 

A California DUI lawyer examines all evidence against you to determine the best defense strategy to fight attempted DUI charges. In some cases, the best defense may be negotiating a plea bargain. 

However, do not tell the police officers or the prosecution even if you believe you are guilty. The state has the burden of proving your guilt, so do not make it easier by confessing. Instead, talk with a California DUI attorney before making statements or accepting a plea agreement. 

What is Considered Drunk Driving Under California Law?

California Vehicle Code §23152 defines drunk driving as:

  • Being under the influence of an alcoholic beverage while driving a vehicle
  • Having a blood alcohol content (BAC) of .08% or higher while driving a vehicle

The law presumes you are too drunk to operate a motor vehicle safely when your BAC is .08% or higher. Therefore, you are arrested for DUI if you agree to take a pre-arrest breathalyzer test and your BAC is .08% or more.

However, the police officers may arrest you for driving under the influence if they have probable cause without administering a breathalyzer test. The police officers may base their decision on the results of field sobriety tests or FSTs. Standardized field sobriety tests include:

  • Walk and Turn Test
  • Horizontal Gaze Nystagmus Test
  • One-Leg Stand Test

You can refuse to take the pre-arrest FSTs and breathalyzers in California without penalty. However, California’s implied consent law requires you to submit to chemical testing for blood alcohol after being arrested for drunk driving. 

The code states that refusal to submit to a chemical test can result in a fine and mandatory imprisonment if you are convicted of drunk driving. Furthermore, refusal to submit to a post-arrest chemical test results in an administrative suspension of your driver’s license for at least one year or two years if the refusal is within ten years of a prior DUI conviction. 

What Are the Penalties for Driving Under the Influence in California?

The potential penalties for a DUI conviction depend on your prior DUI history and the circumstances of your arrest. DUIs are priorable offenses in California. If you have a previous DUI conviction within ten years, the severity of the punishment for your current drunk driving conviction increases. Felony DUI convictions count regardless of when the court convicted you of felony drunk driving. 

The potential penalties for a misdemeanor DUI charge include:

  • Fines and assessments
  • Incarceration in county jail or state prison
  • Court-approved alcohol or drug education program
  • Three to five years summary (informal) probation 
  • Driver’s license suspension
  • Up to 30 months in California DUI school
  • Mandatory installation of an ignition interlock device (IID)
  • Designation as a habitual traffic offender for repeat DUI convictions
  • Restitution to injured parties
  • Strike against your record under California’s Three Strike’s Law for a felony DUI

Additionally, if aggravating circumstances are present when the police arrest you for DUI, the penalties for a conviction increase. Aggravating circumstances for a DUI conviction include:

  • Causing a DUI accident that results in injury or death of another person
  • Excessive speeding while driving under the influence
  • High blood alcohol content of .15% or more
  • Refusing to submit to a chemical blood test after a DUI arrest
  • Being under the age of 21 years at the time of the DUI arrest
  • Having a child under the age of 14 years in the car while driving under the influence 

Aggravating circumstances enhance the penalties for a DUI conviction in California. However, you could also face additional criminal charges for some aggravated offenses. 

For example, you could be charged with underage drinking and driving or child endangerment. Those charges would carry additional penalties for a conviction. 

Fighting DUI Charges in California 

The consequences of a DUI conviction go beyond jail time and fines. A drunk driving conviction causes your car insurance rates to increase. You could lose your job because you serve time in jail or have a DUI on your record. A DUI conviction could make it more difficult to find employment in the future if driving is required as part of your job duties.

You can fight DUI charges instead of pleading guilty. A California DUI defense lawyer investigates your DUI arrest and the steps taken after your arrest to determine if errors or police misconduct occurred. Depending on the facts of your case, a DUI lawyer could raise one or more defenses, including:

  • Challenging the results of the DUI chemical test
  • Alleging the police officers lacked probable cause for a DUI stop or DUI arrest
  • Presenting evidence that a medical condition caused you to appear drunk, such as a brain injury, diabetes, or epilepsy
  • A medical condition caused a false BAC level, including GERD, acid reflux, or diabetes
  • Challenging the accuracy of field sobriety tests 
  • Alleging a failure to maintain the chain of custody for chemical tests
  • Arguing that you were not driving or operating a motor vehicle at the time of your arrest
  • Arguing that your ability to operate a motor vehicle was not impaired at the time of your arrest

Accepting a plea deal without talking to a California DUI attorney is not in your best interest. The best way to protect your rights is to understand the law and potential defenses to DUI. A prosecutor is not a trusted source for legal advice since it is their job to convict you of a crime.

Instead, talk with a DUI lawyer before accepting a plea deal or pleading guilty to drunk driving charges. Even if you cannot avoid a conviction, having a lawyer on your side can help you obtain a more favorable plea agreement that could avoid jail time for DUI charges. 

What if I Get a 2nd DUI While on Probation for My 1st DUI?

Drunk driving convictions are priorable offenses in California. A priorable offense means that the prior conviction enhances the penalties for another conviction. Therefore, any prior DUI convictions on your record result in harsher punishments for subsequent drunk driving convictions. 

Being charged with driving under the influence while on probation for a DUI conviction is treated severely by California courts. Punishments for drunk driving are intended to deter individuals from repeating the same conduct. If you violate DUI probation by driving under the influence again, your prior DUI affects the new offense, and you also face the consequences for violating DUI probation.

Unfortunately, violations of DUI probation are common. The best thing you can do for yourself is contact an experienced California DUI defense lawyer.

How Does the 2nd DUI Affect Your Current DUI Probation?

For a first-time DUI conviction, judges may grant three to five years of summary (informal) probation. The terms of probation vary, but they often include:

  • Agreeing not to drive a motor vehicle with any measurable amount of blood alcohol in your system during the probationary period
  • Agreeing to submit to a DUI blood test or DUI breath test if arrested for suspicion of driving under the influence
  • Paying fines and assessments
  • Completing DUI school
  • Attending an alcohol and/or drug treatment program
  • Community service
  • Agreeing to drug and alcohol testing
  • Suspension of driving privileges or mandatory installation of an ignition interlock device (IID)

Breaking any of the rules of probation could result in penalties for the probation violation. As noted, most probation terms include an agreement not to drive with any measurable alcohol in your system. Therefore, driving after just a couple of drinks could result in a probation violation. 

What Are the Consequences of a Second DUI on Probation for a First DUI Conviction?

You could be convicted of violating probation even if you are not convicted of drunk driving because you do not have to be over the legal limit to violate probation. For example, merely driving under the influence of alcohol is sufficient to charge you with violation of probation. Likewise, refusing a chemical test is sufficient to make an arrest for a DUI probation violation. 

Violating DUI probation is a separate criminal offense. After your arrest, the court schedules a probation violation hearing. At the hearing, the prosecution presents evidence that you violated the terms of DUI probation by driving under the influence of alcohol or drugs. Evidence may include the testimony of the police officer, results from field sobriety tests, and blood alcohol chemical test results.

The burden of proof during a probation violation hearing is less than the burden of proof at a DUI trial. The prosecutor only needs to prove you violated the terms of probation by a preponderance of the evidence. 

A preponderance of the evidence means that the allegations against you are more likely to be true than not true. In other words, there is a more than a 50% chance you violated the terms of probation. However, during a DUI trial, the prosecution must prove its case beyond a reasonable doubt.

The judge is not ruling on whether you were driving under the influence or driving with a BAC over the legal limit. That decision occurs at the hearing for your second DUI charge. At this hearing, the judge only determines whether you violated the terms of probation. 

If you did not violate the terms of DUI probation, nothing happens. Instead, you continue with your probation period as if the hearing did not occur. 

However, if the judge finds that you violated the terms of DUI probation, the judge can take one of three actions:

  • Revoke summary probation 
  • Modify the terms of your summary probation to make them stricter
  • Reinstate summary probation with the same conditions and terms

If the judge revokes summary probation, you must serve your full jail or prison sentence for the first DUI conviction. Your second DUI offense proceeds and is impacted by the first DUI conviction, but not by the outcome of a probation violation hearing. 

How Does DUI Probation Affect a Second DUI Offense?

The DUI probation does not impact the sentencing for a second DUI offense. However, having a prior DUI conviction on your record enhances the sentence for the second DUI offense.

Generally, the penalties for a misdemeanor first-time DUI offense include:

  • Assessments and fines up to $1,000
  • Up to six months in jail (may qualify for work furlough or work release)
  • Loss of driving privileges for six months
  • Installation of an ignition interlock device for six months
  • Attending DUI school for three months
  • Three to five years of summary (informal) probation

You may or may not receive all of the above penalties or the maximum penalties. A California DUI attorney can argue for lower sentences based on the facts of the case. 

However, a second misdemeanor DUI conviction within ten years carries more severe penalties. The potential penalties for a second-time DUI conviction include:

  • Assessments and fines up to $2,000
  • Up to one year in jail, with a minimum jail sentence of 96 hours
  • Three to five years of summary probation
  • 18 to 30 months attendance at a court-approved DUI school
  • Installation of an ignition interlock device (IID) for up to a year
  • Loss of driving privileges for two years (may apply for a restricted license after one year)

The same terms of probation generally apply to the second DUI conviction. Additionally, the judge may order the person to attend a drug and alcohol treatment program, pay restitution if the DUI involved an accident, and participate in Alcoholics Anonymous, Narcotics Anonymous, or a Mothers Against Drunk Driving victim impact panel.

What Are My Choices if I Get a Second DUI While on Probation for Driving Under the Influence? 

You can plead guilty or no contest to the DUI charges and accept the court’s sentence. Alternatively, you can enter a plea agreement with the prosecution. However, since this is your second DUI conviction, the plea agreement’s terms may not be as favorable. A California DUI lawyer can help you negotiate the best terms.

On the other hand, you may plead not guilty and decide to fight the DUI charges. Your attorney investigates the circumstances of your drunk driving arrest. In some cases, police misconduct could result in a motion to suppress evidence. The evidence against you could be thrown out if you win at the motion hearing, making it very difficult for the prosecution to win the case.

A DUI lawyer may challenge the results of a breathalyzer or chemical test. Your BAC level may have been elevated because of your diet, a health condition, or malfunctioning machine. In some cases, the lab technician or police officer could have made a mistake collecting or testing the sample.

Even if you cannot win the case at trial, having a California DUI defense attorney investigate the case can help during plea negotiations. Your attorney may uncover weaknesses in the prosecution’s case or evidence that would be favorable to you during a trial. Your lawyer uses this information to negotiate terms of a plea bargain that are more favorable than the sentence you would receive if you plead guilty in open court. 

A plea agreement may include reduced charges that would not count against you for future DUI convictions. It could also include no jail time or less jail time with reduced fines. The terms of the plea agreement depend on the facts of your case. 

Prosecutors are often more willing to negotiate better terms with a criminal defense lawyer than with a person representing themselves. The prosecutor knows most people are unfamiliar with DUI laws and court procedures. However, the prosecutor cannot take advantage of an experienced DUI attorney who is willing to go to court to protect the client’s best interest. 

The best way to avoid a probation violation is to avoid driving after consuming any amount of alcohol. Also, talk to your DUI lawyer for the first case. Ensure you understand all the terms of your DUI probation. Some people violate probation because they are not clear on the terms of probation. Understanding what probation entails can help you avoid violating DUI probation. 

As soon as possible after a DUI arrest, contact a California DUI defense lawyer. An attorney advises you about your legal rights and the things to avoid doing that could hurt your chance of beating the DUI charges. Your attorney also helps you through the probation violation hearing and deals with the new drunk driving charges.

What Are the Consequences for Violating the Brady Rule?

Criminal cases in the United States are adversarial. The prosecution has the burden of proving that the defendant is guilty beyond a reasonable doubt. The defendant has the right to present a vigorous defense in court. Each party presents evidence for the jury or judge to consider supporting their arguments and accusations. 

An exception to the adversarial role of a prosecutor is the Brady Rule. The prosecution in a DUI case must disclose specific types of evidence to the defendant. However, some prosecutors ignore this rule or claim they were not aware they had specific evidence in their possession. A violation of the Brady Rule could have several favorable results for the defendant, including setting aside a guilty verdict. 

What is the Brady Rule?

The Brady Rule came out of the Brady v. Maryland case decided by the United States Supreme Court. The court held that a prosecutor has a duty to disclose favorable evidence to the defendants under the Fifth Amendment and Fourteenth Amendment upon request. Any exculpatory evidence or material that pertains to the defendant’s guilt or punishment must be turned over to the defense. 

Exculpatory evidence is evidence that would be favorable to the defendant. The evidence may help prove the defendant’s innocence, create reasonable doubt, or damage the prosecution’s case. Failing to comply with the rule is known as a Brady violation.

What is a Brady Violation?

A Brady violation has three components:

  • The prosecution must have suppressed the information 
  • The suppressed information must have been favorable to the defendant
  • The defendant was prejudiced because of the suppression of evidence

The Brady decision dealt with due process in the judicial system. The court made it clear that the prosecution has a duty to hand over certain information and evidence to the defense. Failing to do so violated the defendant’s right to due process.

Suppression of Evidence by the Prosecution 

The first element of the Brady Rule focuses on the prosecution’s conduct in suppressing the evidence. Willfully and intentionally failing to disclose information and evidence favorable to the defense violates the Brady Rule.

However, the prosecution could violate the Brady Rule even if it was not aware that it had favorable information in its possession. Any favorable evidence the prosecution has must be disclosed to the defense. Therefore, a prosecutor who forgets to turn over information or fails to review all evidence before trial to determine if the evidence is exculpatory could be guilty of a Brady violation. 

Favorable Evidence Includes All Evidence

Brady evidence generally refers to tangible items, such as documents and items in the prosecution’s possession. Brady information refers to any information the prosecution gains from interviewing witnesses or through an investigation. 

Some prosecutors try to avoid the Brady Rule by not writing down information. Therefore, many courts use the term Brady information instead of Brady evidence to make it clear to the prosecution that it has a duty to disclose all favorable information, regardless of how the information was obtained or the information’s format.

Furthermore, the disclosure of information required under the Brady Rule is not limited to admissible evidence. The evidence could be considered Brady Rule information if the evidence could lead to admissible evidence.

Undermining the Confidence in the Outcome of the Trial

Deciding whether a Brady violation prejudiced the defendant can be the most difficult element of a Brady violation. The court should not entertain arguments from the prosecution that other evidence would have been sufficient to convict the defendant, or the outcome of the case would have been the same.

The court must conduct a detailed analysis of the factual record to determine whether the prosecutor violated the Brady Rule. If the confidence in the trial’s outcome could be questioned because of the failure to disclose Brady evidence, the court should rule in favor of the defendant. 

Examples of Brady Evidence in a DUI Case in California 

There is no set rule for how a prosecutor must comply with the Brady Rule. Generally, the prosecution sends evidence and information to the defense attorney. However, the office may “bury” Brady Rule documents within the unfavorable evidence. Therefore, an experienced DUI defense lawyer thoroughly reviews each document and each piece of evidence to determine whether the evidence could favor the defendant. 

Generally, Brady evidence includes, but is not limited to:

  • Scientific reports (i.e., reports that indicate breathalyzer tests based on partition ratios may not always be accurate)
  • Pre-trial witness statements that contradict what the individuals testified to at trial
  • Physical evidence, including items seized during a DUI stop, such as drug paraphernalia, bottles, etc.
  • Results of a blood alcohol test (BAC) that were contaminated or mishandled
  • Breaches in the chain of evidence for chemical tests
  • Available evidence in a criminal case, including fingerprints, photographs, recordings, videos, physical evidence, cell phone records, etc.

Blood test results can be extremely important when accused of driving under the influence instead of driving with a BAC level above the legal limit (.08% or higher). A low BAC level could favor the defendant because the prosecution needs to prevent evidence that convinces the jury members that the defendant’s ability to operate a motor vehicle was “impaired” by the alcohol. 

When Can I Bring a Brady Claim for My DUI Case in California?

Brady violations may be discovered after the trial of the case. The defendant must file a post-conviction motion asking the court to vacate the conviction based upon a Brady violation. However, some defense teams discover Brady violations during the trial. If so, they can file a motion with the court to decide the issue.

If the defense believes the prosecution is hiding evidence that would be disclosed under the Brady Rule, it can ask the court for an in camera examination of the evidence. That means the judge examines the evidence in private to decide whether the evidence is subject to the Brady Rule. 

In either case, Brady motions and hearings can be complicated court proceedings. You need an experienced California DUI defense lawyer to fight to ensure the prosecution follows the rules throughout the case. 

What Are the Outcomes of a Brady Rule Violation in a California DUI Case?

There are several potential outcomes of violating the Brady Rule. First, the judge could issue a mistrial if he discovers the prosecutor violated the Brady Rule during a trial. Second, the judge could rule that the suppressed evidence is not admissible in court. Third, the judge could dismiss the criminal charges for Brady violations. 

If the defendant has been convicted, the court could vacate or overturn the conviction. However, the court could also allow the conviction to stand, but punish the prosecution for violating the Brady Rule. California courts treat Brady violations seriously.

Defending DUI Charges in California Courts 

A California DUI defense lawyer investigates all aspects of your drunk driving charges from the DUI stop through the DUI arrest. Preparing for the trial involves requesting Brady materials and information. Then, the attorney carefully analyzes the evidence to determine how the evidence impacts your case.

However, defending a DUI charge involves much more than watching for violations of the Brady Rule. Prosecution and police misconduct can take many forms. A California DUI lawyer reviews the police actions to determine if they violated your civil rights. For example, did the police officers have reasonable suspicion to pull you over for drunk driving? Did the officers have probable cause for an arrest?

If law enforcement agents violated your civil rights, your attorney might file a motion to suppress evidence or dismiss the case. In addition to procedural errors and police misconduct, there are other defenses to DUI charges in California.

Other potential DUI defenses include, but are not limited to:

  • The alcohol continued to increase in your bloodstream after the police pulled you over, resulting in a high BAC
  • You have a medical condition that made you appear intoxicated or resulted in a false BAC level, such as diabetes, epilepsy, GERD, brain damage, or acid reflux
  • The breathalyzer machine was improperly calibrated or malfunctioned because of a defect or lack of maintenance
  • The police officers used non-standardized field sobriety tests or provided incorrect instructions for standardized FSTs
  • Environmental factors tainted the field sobriety tests
  • You were not driving the motor vehicle (i.e., you were asleep in your car)
  • Your blood sample fermented, resulting in inaccurate blood tests 

A drunk driving conviction can result in numerous penalties. You could be ordered to pay a high fine and serve time in jail or state prison. The judge may also suspend your driver’s license and order you to attend DUI school or a drug/alcohol treatment program. You could also have three to five years of summary probation.

The stakes are high when you face charges of driving under the influence. For that reason, it is best not to rely on advice from police officers or the prosecutor. They believe you are guilty and will use whatever you say against you.

Instead, it is best to remain silent except for asking for a criminal defense lawyer. Hiring a California DUI defense attorney gives you a better chance of beating the DUI charges or negotiating a favorable plea agreement. 

Can I Withdraw My DUI Plea?

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:

  • Ignorance
  • Overreaching
  • Incompetence
  • Inadvertence 
  • Mistake

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. 


Contesting Breath Alcohol Tests with Partition Ratios

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: 

  • Diabetes
  • 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.