You might be feeling hopeless when you are arrested for a DUI, especially if you think the evidence is all against you. However, you have many legal avenues through which you can defend yourself. The law requires that the prosecution prove all elements of the crime beyond a reasonable doubt, which gives defense lawyers enough room to come up with a valid defense. In addition, officers should follow the right procedures when gathering evidence. Failure to follow these rules gives an attorney an avenue to challenge the evidence by the prosecution. The most important part of fighting a DUI charge is hiring a lawyer with the credibility and portfolio of past successful DUI cases. De Luz Heights DUI Attorney will guide you on how to prepare a defense, the best strategy to use, and what to say to avoid self-incrimination.


Fighting DUI Charges

Preparing for a defense begins as soon as an officer pulls you over. Notice what the officer says, what they do, how he or she conducts the investigation, and how they arrest you. These little details can help you debase the entire foundation upon which the prosecution has built its case.

The point of building a strong defense for your case is to achieve the best possible outcome. A good lawyer will advise you on the best approaches you can take depending on the evidence against you and the facts of the case. Your lawyer may be confident that a plea bargain is the best option or choose a trial. Whichever strategy your lawyer prefers, the final decision lies with you.

This article discusses some of the common defenses a De Luz Heights DUI Attorney can apply in your defense:

  1. Bad Driving

While intoxication contributes to bad driving, not all bad drivers are under the influence of alcohol or drugs. Bad driving can result from distractions, fatigue, or poor driving skills. Some actions that could be termed as bad driving include driving too slowly or too fast, swerving, or missing stop signs.

If you were simply driving poorly, then you can use this defense to fight DUI charges. Your lawyer will cross-examine witnesses and the arresting officer to determine whether the officer had probable cause when arresting you, what actions indicated bad driving and your blood alcohol level.

The legal BAC level is .08%, which is the point at which an average person of healthy weight becomes intoxicated. Intoxication means that alcohol, or a combination of drugs and alcohol, has diminished reasoning and decision-making abilities that a sober person should have under similar circumstances.

Your lawyer can argue that at the alcohol concentration in your body and your weight, you were still mentally alert when arrested. In other cases, your lawyer can prove that your bad driving is a result of other causes such as fatigue, not alcohol.

  1. The Officer Had No Reason To Pull You Over

The Fourth Amendment prohibits illegal search and seizure. An officer violates your fourth amendment right if they stop you for no reason. If an officer stops you at a DUI checkpoint because of prejudice, then the subsequent arrest is illegal. The court cannot use any evidence collected from an illegal search and seizure; therefore, it may dismiss your case.

Police officers are expected to follow the right procedures, including having a reasonable cause for pulling you over. The probable cause could be that you have committed or are about to commit a traffic violation.

In addition, the officer has to have a reasonable cause to initiate a DUI investigation. After the initial stop, the police officer decides the next cause of action after assessing whether the driver displays any sins of intoxication. Some of the facts that may lead to a DUI investigation include:

  • Admission by the driver about drinking and driving
  • Open containers of alcohol in the car
  • An alcoholic breath/odor on the driver
  • Physical symptoms of intoxication such as watery eyes

An arrest violates your freedom of movement and privacy. Therefore, the constitution requires that a police officer justify having to arrest you. The probable causes for a DUI arrest include:

  • Your BAC level is above the legal limit
  • You perform poorly on field sobriety tests
  • You have distinct signs of intoxication

If your attorney realizes that the police officer failed to meet any "probable cause" standard, he or she will file a motion to suppress evidence. If the court approves the motion, then the chances of a dismissal or reduced charges are higher.

  1. Miranda Rights Violation

The Fifth Amendment gives every American the freedom from self-incrimination. If the arresting officer fails to advise you on your Miranda rights, then the self-incriminating statements you make are not admissible in court.

Miranda rights also protect you from coercive interrogation. Even if an officer reads your Miranda rights but coerces you to admit guilt, he or she has violated your rights.

Usually, the arresting officer has to demonstrate that you gave knowing, voluntary and intelligent consent by signing a written waiver.

You can exercise the right to remain silent even during a DUI interrogation. The law does not require you to answer every question the officer asks you. Some questions such as:

  • Were you drinking?
  • How many drinks did you have tonight?

To reply to such questions, politely decline and state your right to remain silent. The police officer cannot use to arrest you or as evidence against you.

  1. Inaccurate Field Sobriety Tests

The NHTSA set field sobriety tests as a standard for investigating DUI. According to, sobriety tests have an accuracy rate of 82%. The tests, however, are not scientifically reliable determinants of DUI.

A De Luz Heights DUI Attorney can challenge the validity of the tests. He or she can take advantage of the fact that that field sobriety tests can be inaccurate depending on how they are administered.

The NHTSA has guidelines that officers should follow when administering field sobriety tests. These guidelines include:

  • Administering the tests in the standardized and recommended manner
  • Noting the proper cues to assess the performance
  • Using standard criteria to interpret performance

Your lawyer can also cite other reasons that may have contributed to your failing the tests. Some of these factors include your age, weight, health conditions, fatigue, fear, or confusion.

  1. Non-Compliance With Title 17 Regulations

Title 17 regulations are rules that govern the conduct of DUI breath, blood, and urine tests. These regulations stipulate who can perform the tests, storage of samples as well as their analysis. Some of the regulations include;

  • Use of sufficient and valid coagulant or preservative in the blood sample to prevent clotting and fermentation
  • Use of a non-alcohol based agent to sterilize the draw site or any equipment used in the collection or testing of a DUI blood or urine sample
  • Proper storage of the blood sample

For breath tests, the regulations include:

  • The breath sample must be from deep lung air
  • The officer should allow a 15-minute observation period before giving a blood test
  • The driver should not eat, drink, vomit, smoke or regurgitate during the observation period
  • Regular calibration of the testing equipment after every ten days or 150 uses
  • The operator should have proper training in using breath testing equipment

In cases of DUI of drugs, the officer may conduct a urine test. Title 17 regulations for such tests include:

  • The subject must first empty his or her bladder
  • The officer should allow at least 20 minutes after the subject empties his or her bladder to collect a urine sample
  • the urine sample must be retained for one year to allow the defense to conduct an independent test

Title 17 regulations allow the production of the most accurate results. Failure to follow these procedures means that you could get higher than the normal BAC level. If any of these regulations were not followed, then the court could discredit the results.

  1. Breath Test Errors

Breath testing equipment could have several errors that affect the credibility of BAC results. Some of the errors include poor handling, malfunction of instruments, psychological and medical conditions, and environmental factors such as radiofrequency waves.

When used properly, breath tests have a 10% margin of error. The margin could increase depending on the maintenance of the equipment and the skill of the officer administering the test.

During maintenance, officers check for the accuracy of the equipment in testing the alcohol concentration of a well-known solution. If the equipment gives a result with an error not exceeding 10%, then the breath testing equipment is in good condition.

However, these instruments do not account for other variables such as:

  • The body temperature of the subject - the higher the body temperature, the higher readings are likely to be.
  • The subject's breathing technique - in an ideal situation, the driver should blow air from the deep lungs. However, not everyone can achieve that, leading to higher BAC readings. People with shallow breathing or who hold their breath are likely to have higher BAC levels.
  • The breath-blood partition ratio - BAC instruments use a standard 1:2100 breath-blood partition ratio. This ratio implies that for every unit of alcohol in your breath, there are 2100 units of alcohol in your blood. However, using this ratio as a standard does not reflect the level of intoxication. In addition, people have different breath-blood alcohol ratios; therefore, the equipment may show a higher or lower BAC than the actual level.

Using BAC results as a measure of intoxication is inaccurate as different people have different tolerance and intoxication levels. Factors that may affect intoxication (which BAC equipment does not test) include:

  • Your age
  • Whether you drank on an empty or full stomach
  • Medical conditions you may have
  • Your weight
  • Your metabolic rate
  • Your alcohol tolerance levels
  1. You Have Another Condition Which Led To High BAC Levels

It is possible to have a high BAC level if you suffer from medical conditions such as acid reflux, heartburn, GERD, or hiatal hernia. These conditions result in the flow of acid to the mouth, which creates mouth alcohol.

If your lifestyle involves a low carb or a keto diet, then you may have high BAC levels even without taking alcohol.

A keto or low carb diet forces the body to metabolize stored fat to get energy. During this process, the body produces ketones, which convert into a form of alcohol. The alcohol released from ketones reflects as ethyl alcohol on a BAC instrument.

People with diabetes type II are likely to experience ketosis more often. This increases the probability that you may be arrested for a DUI, even without drinking. If a DUI arrest happened at a time when you were on a low carb or keto diet, or you suffer from diabetes, then your De Luz Heights Attorney can use ketosis as a defense.

  1. Rising BAC Levels

When you take alcohol, it may be sometime before the body absorbs it. Normally, it takes 30 minutes to 2 hours for the body to metabolize the alcohol completely. Once fully metabolized, the alcohol level declines steadily, albeit slowly.

When you are arrested, the officer does not take the breath test immediately. Therefore, there exists the possibility that your BAC level will have risen by the time the officer administers the test.

Your attorney can use the rising BAC defense if your BAC is close to the legal limit. Often, the court will require the testimony of a toxicology expert. Such evidence can get your charges dismissed or reduced, at the pretrial or trial stage.

  1. Illegal DUI Checkpoint

A DUI Checkpoint in California should meet certain requirements to be lawful. Some of these regulations include:

  • A supervisor must set up the checkpoint
  • Field officers should follow a predetermined numerical formula to stop vehicles
  • The checkpoint should be publicly advertised
  • The checkpoint should be at a reasonable location and last for a reasonable duration
  • The checkpoint should have all safety precautions in place
  • The checkpoint should be clearly identifiable through the use of official vehicles and officers who are dressed in uniform

If the DUI checkpoint does not meet these requirements, your lawyer can challenge this evidence. While at the checkpoint, you can use a defense such as a long and unnecessary detention period. An officer at a checkpoint should detain drivers for the shortest time possible.

During the detention period, the officer should briefly identify signs of intoxication and release those without any signs of intoxication. In addition, if the officer has no reasonable suspicion or cause, he or she should not delay you further

  1. Mouth Alcohol

Some traces of alcohol can remain in your mouth after consuming alcohol. Mouth alcohol registers on your BAC, showing a higher concentration of alcohol in the blood. You may have mouth alcohol from the following:

  • An alcoholic beverage
  • Medical conditions such as GERD
  • Medications that contain alcohol
  • Alcohol-based mouthwashes

The justice system requires that officers observe you for 15 minutes before conducting a breath test. The observation period allows only any alcohol in your mouth to dissipate, leading to results that are more accurate.

Your De Luz Heights DUI Attorney can use the residual mouth alcohol defense to dispute breath test results. To back this defense, your lawyer can point out that:

  • The officer conducted a breath test before the 15-minute observation window closed
  • The officer did not observe you continuously during the observation period
  • You have evidence of another source of mouth alcohol


How You Can Help

The lawyer you hire plays a crucial role in the success of your defense. His or her experience in fighting DUI charges will determine the chances of identifying the best angle for approaching your case. Such a lawyer can objectively examine the prosecution's evidence and advise you on the best way forward. Your lawyer can then represent you during the pretrial motions and the trial itself.

However, you also have a role to play in building a strong defense and fighting DUI charges. The process begins when the officer stops you at a checkpoint. For most people, the first reaction is fear. You may feel the need to answer truthfully to every question the officer asks even if it incriminates you.

Even if the officer has not read your Miranda rights, you should know that you still have the right to remain silent. Cooperate with the officer in other ways that do not incriminate you. If you have not been arrested, you are not legally required to give a preliminary alcohol screen (except at a DUI Checkpoint). However, if you are in custody, you are supposed to submit a test.

Notice everything the officer does, from when they stop you to when you are released. The conduct of the officer will form the basis for determining how well they followed the standard procedures. Note down what happens as soon as you are released.

Whenever you are arrested for a DUI, you have to hire a DUI attorney if you are hoping for a fair representation. Experienced attorneys know the ropes in the industries, common pitfalls, and loopholes the prosecution makes.


Find A DUI Attorney Near Me

The consequences of a DUI can range from a license suspension to jail term and a criminal record. Such consequences have negative effects on your family, your career, and educational pursuits. At the San Diego DUI Attorney, we have familiarized ourselves with the common legal defenses that apply in DUI cases. We have fought DUI cases achieving results such as reduced sentences, reduced charges, dismissals, or acquittals. We commit ourselves to applying the best defense for your situation and include your input every step of the way. Contact us today at 619-535-7150 for a free consultation.