Tag Archives: DUI

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

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

Examples of “Do-It-Yourself” DUI Defenses

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

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

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

Troubles with “Do-It-Yourself” DUI Defenses

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

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

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

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

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

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

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

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

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

Choose Experienced, Reputable Legal Representation

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

Consenting to a DUI Blood Draw

Prosecutors in California and other states are thrilled when they receive a DUI case from law enforcement officers which includes results from a blood draw of the suspect driver. Unlike breath testing machines like the Intoxilyzer, which are notoriously unreliable devices for measuring actual breath alcohol concentration, blood tests are more accurate. However, a blood draw can only happen if law enforcement officers get a warrant or get the person’s consent.

Consent Generally in California DUI Cases

The Fourth Amendment protects people from unreasonable searches and seizures by the government. This means that law enforcement must generally obtain a warrant before they can conduct searches of private property or persons. A blood draw, by literally going into a person’s body to extract evidence in a criminal case, is a search and seizure for Fourth Amendment purposes. Thus, any blood draw conducted by law enforcement must be “reasonable” or else the fruits of the search may be suppressed. In order to be “reasonable,” a search or seizure must be performed according to a validly-issued search warrant or an exception to the warrant requirement must apply.

The consent of the person to be searched has long been recognized as an exception that relieves law enforcement of their obligation to obtain a warrant for the person’s blood. Stated another way, a person can consent to a blood draw in a DUI investigation, and this consent means that law enforcement does not need to first get a warrant. So long as the person’s consent is knowing and voluntary, the blood draw and the test results that follow will all be admitted into evidence.

As mentioned, to be valid, generally speaking, consent must be freely and knowingly given. This means that a person’s decision to give consent cannot be unduly influenced by improper police behavior or pressure. Similarly, the person’s choice of whether to give consent must be a choice that is informed and not impacted by false legal information. If consent is not freely and voluntarily given, then officers may not be able to rely upon it to search or seize evidence, including a blood sample, unless they obtain a warrant.

Drivers Do Not Need to Consent to a Blood Draw

Obtaining a warrant can be a hassle, especially for an overworked or tired officer or deputy. As a result, that officer or deputy may attempt to get a driver’s consent for a blood draw rather than go through the process of obtaining a warrant. The officer may indicate, for example, that California’s implied consent laws mean that the driver must submit to a blood test whether the driver wants to or not. Or the officer may attempt to coerce consent by threatening the driver with additional criminal or administrative penalties for refusing to give their consent.

It is true that California does have an implied consent law, which requires drivers who have been arrested on suspicion of a DUI to submit to a breath or blood test. If a driver refuses, the officer must obtain a warrant, and the driver can be subject to additional penalties being imposed for the refusal. The constitutionality of this implied consent law, however, is in question thanks to a 2016 U.S. Supreme Court decision, Birchfield v. North Dakota. In that case, the Supreme Court of the United States held that a North Dakota law that criminalized a driver’s refusal to submit to warrantless blood tests incident to arrest was unconstitutional and violated the driver’s Fourth Amendment rights.

In light of Birchfield, California’s implied consent law as applied to warrantless blood draws is now of questionable constitutionality. The Court in Birchfield held that it was unconstitutional to create a separate crime to refuse a blood test, but California does not make it a separate crime. It only imposes additional penalties. The court has yet to extend the ruling to merely imposing additional penalties, rather than making it a separate crime to refuse. This means that, for now, drivers who are arrested for DUI should not feel compelled to consent to a blood draw.

Defenses in a DUI Blood Draw Case

If a driver consented to a blood draw, there may still be several ways to defend against the DUI charge. Just as is true with breathalyzers, there are procedures that law enforcement officers, or medical professionals at the direction of law enforcement officials, must follow when performing a blood draw. These are designed to ensure the blood sample is collected in a safe manner that minimizes the risk of contamination of the sample. If these procedures are not followed, a motion to suppress may keep the blood test results from being admissible – even if the driver consented to the test.

In a similar way, blood test results obtained by consent may be suppressed if officers obtained the driver’s consent through deceptive, unfair, or illegal actions. To be valid, consent must be freely and knowingly given by the driver. An obvious example of invalid consent would be “consent” obtained through physical force or the threat of physical force. Officers cannot threaten bodily harm to drivers and thereby obtain their consent to blood testing, nor can officers make false statements about their right to search without a warrant. Consent given by a driver after an arresting officer says they will be “locked up and the key thrown away” for refusing a blood test is not consent that is “freely” given.

Finally, drivers remain free to revoke any consent previously given up to the moment the blood draw is actually completed. If the driver clearly communicates that they are withdrawing their consent to a blood draw, officers are required to proceed as if consent had never been given and obtain a warrant for the blood draw. If they do not, the blood draw and results may be successfully suppressed.

Other defenses may be available, but some may require a careful and detailed analysis to know whether they are applicable in a given case. Drivers facing DUI charges should discuss their case with experienced legal counsel as soon as possible.

A California DUI with Priors

The facts of a recent news story from Edgewood, Delaware are repeated countless times across the United States on a daily basis: a driver is arrested for driving under the influence and is found to have been previously convicted of DUI one or more times. In the story from Delaware, a driver was arrested for his fifth DUI offense after rear-ending another vehicle. This individual, though, is not unique. Surprisingly or not, it is not uncommon for driver drivers to have been arrested and charged with their sixth, seventh, or eighth DUI offense. The record likely belongs to Allen Warner of Wisconsin, who is believed to have accumulated 15 DUI convictions in his lifetime.

Penalties Increase for Each Subsequent DUI in California

 Accumulating DUI convictions is no contest or game, however. Even having one previous DUI conviction can mean higher fines and longer jail sentences, at a minimum. In California, for example, a driver with no prior convictions for DUI can expect to spend no more than six months in the local county jail and be fined no more than $1,000. If that person is convicted of a subsequent DUI within 10 years of their first, then the person could serve between 96 hours and one year in jail, not including the other conditions that a court will likely impose, which can include longer probation and an ignition interlock device (note that some counties in California require an ignition interlock device for a first-time DUI). If the driver is convicted yet again, then they can expect to serve a minimum of 120 days in jail.

Drivers who have three or more prior DUI convictions and who are arrested for a subsequent DUI may be charged with a felony DUI in California. Also, once a driver has been convicted of a felony DUI, then each subsequent DUI arrest will be charged as a felony. Felony DUIs in California may result in the imposition of a three-year prison sentence on top of fines and fees, not to mention the likely other conditions that the court will impose.

There are collateral consequences to multiple DUI convictions in California as well. One’s first DUI conviction can lead to their license being suspended for 6 months; that time can increase to one year for a second DUI conviction and three years for a third conviction. As mentioned, other conditions may be imposed, such as AA meetings, a longer DUI program, a Hospital and Morgue Program, MADD’s Victim Impact Panel, and possibly even alcohol rehab.

Prior “Convictions” in California DUI Cases

In determining how many prior convictions a driver has accumulated, the prosecution will look at the driver’s driving record and criminal history. “Convictions” include not only DUI convictions from California, but also convictions from other states for offenses that would be considered a DUI in California. In order for an out-of-state conviction to count as a “prior,” the prosecution must produce a certified record or abstract of judgment from the jurisdiction where the prior, out-of-state DUI occurred. This evidence must clearly establish that the driver’s prior out-of-state conviction resulted from the defendant actually driving under the influence. A driver who was convicted in another state for being in “actual physical control,” for example, may be found to not have a prior “conviction” for purposes of California’s DUI law because California requires that a person actually drive the vehicle.

Defending Against a DUI Charge with Prior Convictions

 In light of all of this, when a person is charged with their second, third, or fourth DUI in California, a defense strategy must not only analyze the evidence of the current DUI charge but also the evidence of the alleged prior DUI convictions. By doing so, the driver may be successful in avoiding some of the more severe penalties that accompany a DUI conviction with prior offenses even if the person is still found guilty for DUI in the present case.

There are two primary ways to defend against prior convictions that are being relied upon to enhance the severity of the current DUI. The first is to demonstrate that the prior out-of-state conviction is not comparable to a California DUI and should not be considered a prior conviction. As noted above, if the out-of-state offense would not be considered a DUI if it had occurred in California. This requires more than simply looking at how the out-of-state jurisdiction titles its statutes. Whether the out-of-state offense is called Operating While Impaired (OWI), Driving While Impaired (DWI), or Operating Under the Influence (OUI) is immaterial: what matters is if the conduct involved in the prior out-of-state incident would have been considered DUI under California’s laws. This is known as the equivalency test and is found at California’s Vehicle Code Section 15023(c).

A second avenue that may be available to drivers is to attack the evidence establishing the prior DUI conviction. In order for the prior conviction to count, there must be some objective evidence that the person was, in fact, convicted of DUI or a comparable offense. Citations, charging documents, and even financial records showing that the driver paid a fine or court costs are generally not enough to meet this burden in a criminal DUI case. Instead, certified records from the court where the prior conviction occurred, showing that the person either admitted guilt or was found guilty, is necessary.

There may still be other ways to keep a prior DUI conviction from affecting your present case. For example, if the prior DUI conviction did not occur within the preceding ten years, then it may not be able to be used as a prior conviction in the present case. Similarly, a court may not consider a prior DUI in California unless that was the offense of which the driver was actually convicted. If the charge in the prior case was amended and the driver actually pled to a lesser non-DUI offense, then that prior conviction may not be used to elevate the severity of the present DUI charge. This does not apply to a conviction for a “wet reckless.” Although a wet-reckless is a charge that is reduced from a regular DUI, it typically counts as a “prior” for purposes of future DUI charges.

Experienced Legal Assistance is Always Helpful When Dealing with DUIs

As you can see, when a person suffers a California DUI after they have already suffered one can create some very technical and nuanced legal issues to be hashed out in court. A California lawyer well-versed in the state’s DUI laws is best suited to help drivers facing their second, third, or fourth (or more) DUI charge. Having legal counsel who can analyze those prior convictions may mean the difference between spending a weekend in jail or spending the next several months behind bars.

Driving While Diabetic: Irregular Blood Sugar Levels May Lead to a DUI Arrest

Approximately ten percent of Americans are believed to have diabetes, according to the Centers for Disease Control and Prevention. Diabetes is a chronic condition that affects the body’s ability to produce or use insulin. Without treatment, people with diabetes may be unable to control their blood glucose levels. This can lead to a host of consequences including heart disease, kidney disease, loss of vision, nerve damage, and even death.

In addition to being potentially life-threatening, uncontrolled diabetes may also lead to a DUI arrest or conviction. The symptoms associated with uncontrolled diabetes can mimic the indicators of intoxication that law enforcement officers look for during a DUI investigation. Not only this, but even breath testing devices can return a “false positive” and indicate that a person with uncontrolled diabetes has alcohol in their systems when they do not.

Hypoglycemia Symptoms and DUI Signs of Impairment

 During any California DUI investigation, law enforcement officers are trained to look for and document “signs of impairment.” Officers use these signs of impairment as evidence to support their conclusions that someone is driving under the influence when making an DUI arrest. A person with diabetes suffering from hypoglycemia (low blood sugar levels) can exhibit some of the same signs that a person under the influence of alcohol might exhibit, including:

  • Confusion about one’s surroundings
  • Sleepiness or lethargy
  • Nervousness
  • Speech that is slurred
  • Swaying while standing or inability to balance while walking

These conditions may cause the driver to perform the standardized field sobriety tests poorly. This, in turn, can provide even more evidence for an officer to place the driver under arrest for DUI. Although the national training materials used to educate officers about the detection and investigation of DUI cases encourages officers to ask whether the driver suffers from medical conditions like diabetes, not all officers take this important step during their investigations. Additionally, a driver may not even know that they suffer from conditions like diabetes.

Hyperglycemia Symptoms and the DUI Breath Tests

 At the opposite end of the spectrum from hypoglycemia, diabetics who experience hyperglycemia (periods of elevated blood sugar levels) may also be mistaken for being under the influence. Another sign of impairment that officers look for when conducting a DUI investigation is an odor of alcohol coming from the driver’s person or breath. A diabetic driver who is hyperglycemic may have an odor on their breath that smells fruity. This can be mistaken for alcohol by law enforcement officers, especially if the officer is not aware of the driver’s medical condition.

It is not just human officers who can be fooled by mistaking hyperglycemia for alcohol impairment. In Type 2 diabetics, the body is unable to efficiently use its own insulin to break down glucose in the body for fuel. As a result, the body’s liver processes fat for fuel. This process causes the body to produce ketones. (Low-carb diets like the keto diet may also result in the production of ketones). Because the chemical composition of ketones is similar to ethyl alcohol, breath testing devices can mistake ketones for the presence of alcohol.  

Prevailing in a California DUI Claim When Diabetic

 If you are arrested and charged with DUI because the officer mistook your diabetes symptoms for signs of impairment, you may still be able to prevail in your case. Evidence of your diabetes diagnosis and your experience with managing your blood sugar levels may be relevant. In addition, the effectiveness of any medications or insulin you are taking and any recent documentation you may have concerning your blood sugar readings may help establish that the officer was not observing signs of alcohol impairment but rather symptoms of diabetes.

Breath tests are a common feature in many California DUI cases. They are, however, inherently unreliable. Despite advances in law enforcement technology, breath testing machines are still not able to effectively and reliably distinguish between isopropyl alcohol – the type of alcohol ketones most nearly approximate – and ethyl alcohol found in alcoholic beverages. Although a California DUI defense attorney cannot challenge the accuracy of breathalyzers in general, evidence may be introduced that the particular breathalyzer used in the arrest was faulty.

Advice for California Diabetics with Uncontrolled Blood Glucose

Whether a driver has Type 1 or Type 2 diabetes, it is critical that the person monitor their blood sugar levels, take any insulin or medication as directed, and make and keep regular appointments with their doctor. This may help to reduce the number of hypoglycemic or hyperglycemic incidents and thereby reduce the risk of an erroneous DUI arrest or charge. More than this, these steps are essential to reducing the chance of nerve and kidney damage vision problems, and premature death. If one is stopped for “driving while diabetic” and is experiencing a severe hypo- or hyperglycemic event, informing the officer of your condition may help you obtain the emergency medical care you need.

What about the diabetic driver who is pulled over and is investigated for DUI but who is not experiencing a medical emergency or in immediate danger from high or low blood glucose levels? Drivers should remember that they do not need to answer any questions from law enforcement officers. Additionally, California drivers have no obligation to complete the field sobriety tests and may refuse to provide a pre-arrest, roadside breath sample. Absent objective indicia of diabetes (such as insulin and syringes or prescription medication) in your vehicle, informing the officer about one’s diabetes may not prevent an arrest for DUI.

Having said that, a person charged with a DUI never has to prove their innocence. However, an experienced DUI attorney may be able to develop a defense strategy in part on a person’s health condition such as diabetes, especially when the symptoms of intoxication and the conditions are indistinguishable.

Can a Phone Predict Whether a Person is Too Drunk to Drive?

Throughout the years, we’ve discussed the different things that a person can do to prevent themselves or others from driving drunk. Amongst them, you’ve heard me mention personal breathalyzers that a person can purchase to help them gauge whether they or someone else should be getting behind the wheel. More convenient and affordable than an actual breathalyzer for the average consumer might be a breathalyzer attachment to a smartphone, which are becoming increasingly popular.

Well, smartphones may no longer even need the breathalyzer attachment to tell someone that they’re too drunk to drive using the accelerometer that is embedded in most smartphones.

According to a study published on August 18th in the Journal of Alcohol and Drugs, smartphones may help predict when a person is too drunk to drive by measuring changes in walking patterns.

Researchers from the University of Pittsburg provided enough alcohol to volunteer participants to raise their blood alcohol content levels to approximately 0.20 percent, and asked them to drink it in an hour or less.

In addition to being well over the legal limit of 0.08 percent in all states but Utah (where the legal limit is 0.05 percent), most individuals would be experiencing the telltale signs of intoxication; disorientation, loss of coordination, dizziness, and trouble walking or standing.

The researchers then monitored the volunteers over the next seven hours to take measurements of their respective blood alcohol content levels every half hour, and have them walk 10 steps in a line then turn around every hour. During this time, smartphones were affixed to the participants’ lower back to measure specific bodily movements.

Based on the measurements recorded on the cellphone, the researchers were able to predict, with 90 percent accuracy, when the blood alcohol concentration for a participant was over the legal limit of 0.08 percent.

Lead researcher Brian Suffoletto, now at Stanford University, acknowledged that the next step is to determine if it is still possible to make the same predictions when participants’ phones are in their hand or in their pocket, the places people most often keep their phones, not lower back.

“Despite these limitations, this proof-of-concept study provides a foundation for future research on using smartphones to remotely detect alcohol-related impairments,” said Suffoleto.

“I lost a close friend to a drinking and driving crash in college,” said Suffoletto in a press release. “And as an emergency physician, I have taken care of scores of adults with injuries related to acute alcohol intoxication. Because of this, I have dedicated the past 10 years to testing digital interventions to prevent deaths and injury related to excessive alcohol consumption.”

One could see the possibilities in drunk driving prevention. With further research and development of apps that are based on what this study is suggesting, it may be possible to soon have an app that, quite literally, will tell you that you are too drunk to drive.