Many Lake San Marcos residents who are arrested for drunk or drugged driving go to court thinking that the evidence the prosecution has against them is overwhelming. They end up pleading guilty, thinking that nothing can be done. At the San Diego DUI Attorney, we believe that no matter how severe your DUI case is, various legal defenses can be tailored to fight the charges. Our DUI attorneys have highlighted some of the arguments below.

Breath Test Errors

Many DUI attorneys and expert witnesses have poked holes in the accuracy and reliability of DUI breath tests for a long time. The reason for the scrutiny of these instruments is because they are associated with individual errors. Some of the errors include but not limited to:

  • Instrument malfunction

  • Inaccurate calibration

  • Inappropriate handling by the police

  • External environmental factors like radio frequency interference

  • Improper handling and technique used by the arresting officer

  • Psychological conditions like diet or medical conditions like GERD

The errors mentioned above are common in breath tests. And because breath tests are used a lot by police when measuring your blood alcohol level after an arrest, the tests are not always accurate.

The reason for the errors is that the equipment doesn’t measure the alcohol levels in your blood directly. Instead, it tests the alcohol levels in your breath and then converts it to establish the amount of BAC level. The results generated during breath testing are usually higher than the actual amount. For this reason, your Lake San Marcos DUI Attorney can use this as a defense strategy and assert that your BAC test results were high because of the breath test errors. Remember that breath test results are used in building the DUI charges, and if these results are unreliable or inaccurate, the case will be dismissed.

Residual Mouth Alcohol

DUI breath testing devices are created in a way to capture a sample of your breath from the alveolar air. However, this doesn’t always happen because, at times, the device might obtain residual mouth alcohol rather than the intended alcohol in your alveolar air. Some of the situations that can result in residual mouth alcohol are:

  • If you recently had dental work, small amounts of alcohol-soaked food in your teeth could result in false BAC tests.

  • If you burp, regurgitate or belch after taking a small amount of alcohol, the breath testing device will detect the amounts when testing making your BAC register falsely high.

  • If you used a mouthwash or breath spray containing alcohol before the breath test, the results would be false.

  • IF you are used to chewing tobacco, the test results might register a falsely high BAC

  • If you have a medical condition like GERD, acid reflux, heartburn, hiatal hernia

In any of the above situations, if the breath testing device captures the residual mouth alcohol instead of the alveolar air, the results will be inaccurate. They will indicate a high blood alcohol level. In case any of the above situations happened before the breath tests were administered, your Lake San Marcos DUI Attorney can claim that the results were inaccurately high because of residual mouth alcohol.

If the arresting officer didn’t observe you for fifteen minutes before conducting the breath test, you could argue that you put something containing alcohol in your mouth. Things medicine, mouthwash, or spray or belching or regurgitating bring alcohol from your stomach to the mouth; thus, the source of the residual mouth alcohol and the falsely high BAC results.

People with acid reflux, heartburn, or GERD can also claim these conditions created the mouth alcohol because of the flow of acid from the stomach to the mouth.

Field Sobriety Tests Don’t Accurately Measure Impairment

When the prosecutor is building a case against you, they rely on FSTs to produce evidence. You can weaken their evidence by challenging the results of the FSTs. The DUI criminalist, prosecutor, and the arresting officer often rely on these tests. This prosecuting team will convict you if they can prove that you performed poorly in the FSTs.

When determining impairment, field sobriety tests are 60-70% accurate if they are appropriately administered and recorded. Very few law enforcement officers conduct these tests appropriately, leaving a lot of room for errors. You can, therefore, argue that the results are inaccurate and don’t reflect impairment. The argument can be supported by innocent explanations like the FSTs were affected by:

  • Nerves

  • Fatigue

  • Flat feet

  • Uneven surface conditions

  • Officer-induced intimidation

  • Bad weather conditions

  • Poor lighting

All the above things can make you fail FSTs even if you are sober. Your and your attorney should ensure that evidence from FSTs is not used as evidence by convincing the judge or jury that the tests do not measure impairment thus cannot be relied upon as evidence.

Simple Bad Driving Doesn’t Equal DUI

Bad driving habits like speeding, reckless driving, or weaving happen even when the driver is sober. Things like being distracted by a passenger, eating, tuning the radio, attempting to pick something you have dropped, or checking your phone could result in bad driving. However, police tend to assume bad driving is caused by drivers who are under the influence of alcohol or drugs, which is untrue.

The truth is that sober drivers might also exhibit symptoms of impairment, but that doesn’t mean they are drunk or drugged.

You could argue that although you exhibited bad driving during the time of arrest, you were sober. However, the defense applies under VC 23152(a) charges. Keep in mind that prosecutors focus a lot on your driving patterns when charging you under VC 23152a (driving under the influence). They usually present the arresting officer in court to testify that you were driving in a manner like that of a person driving under the influence, which is mere allegations.

A profound and experienced DUI attorney will refute this proof by requesting the arresting officer to state all the ways you drove safely or adequately at the time they observed you drive badly. The majority of arresting officers focus on bad driving, so they will not testify on the instances you drove defensively. Your Lake San Marcos DUI Attorney will further provoke the testimony by the police officer by arguing that:

  • Driving patterns cannot be reliably used to predict DUI, and

  • The majority of drivers who violate traffic rules are sober.

Lack of Probable Cause for a DUI Stop

Law enforcement officers in California are required by the law to have probable cause or reasonable suspicion before:

  • Stopping your vehicle

  • Detaining you and conducting investigations

  • Making a DUI arrest

If the officer lacked the legal standard of probable cause to make the stop, all the evidence collected during the investigation would be suppressed, and the case removed.

Remember, the police do not require reasonable suspicion or belief that you were operating a vehicle when drunk or drugged. Other minor traffic violations like speeding, weaving, or driving with a broken tail light can give police officers a probable cause to make a traffic stop. Even if you were driving late at night something familiar with motorists driving under the influence, that would not be enough to prove why the officer stopped you and conducted the test.

In case the stop was legal, the arresting officer must articulate why he or she decided to administer the DUI test. Here, the officer must point out various signs of intoxication, like the smell of alcohol on your breath or bloodshot eyes. If the reason for the DUI tests was speeding or weaving, then your DUI attorney can claim that the officer lacked probable cause to detain you and conduct an investigation. This means that the results of the DUI tests will be stifled, resulting in dismissal or reduction of the charges.

Miranda Rights were Not Read to you by the Arresting Officer

Despite the misconception by most people, an arresting officer is not always obligated by the law to read the Miranda rights when making a DUI arrest. However, the Miranda rights will be read when you are arrested, and the police officer begins a custodial investigation. It means that for the rights to be read, you must be in police custody, and some of the questions the officers are asking might result in implicating responses. Remember, any answers you give willingly without being questioned can be used against you in court. For this reason, before you are arrested, and the officer begins to ask you questions whose responses might be damaging, they must read the Miranda rights.

If the officer conducted a custodial investigation without advising or reciting the Miranda rights, any response that you had given that is self-incriminating will be excluded from the case. That way, the prosecution will be left with a weak argument, thus reducing or removing the DUI charges.

Innocent Explanation for the Objective Symptoms DUI

Physical appearance at the time of the traffic stop might play a pivotal role in DUI investigations. An arresting officer will be tempted to conduct blood or chemical tests if he or she observes the following DUI signs:

  • Bloodshot, watery eyes

  • Slurred speech

  • Alcohol odor on your breath

  • Unsteady gait

  • Flushed face

If you exhibited any of these signs, the police officer would jump into the conclusion that you are intoxicated. However, whether the symptoms are accurate or not, they shouldn’t mean you are drunk.

With a skilled DUI attorney, you can give an innocent explanation of why you are exhibiting the symptoms. Remember, even if you were drinking, the symptoms do not mean that you were drunk or drugged. The signs might be triggered by other things like allergies, fatigue, the sun, physical injuries, or disease. An excellent DUI attorney will prove to the prosecutor that he or she understands the above signs could have other innocent explanations apart from being under the influence, thus preventing unfair charges by the prosecutor.

Rising Blood Alcohol

Drinking before driving is not illegal. What is unlawful is impairment at the time you are behind the wheel. After drinking, the alcohol is absorbed in the blood after an average period of fifty minutes to three hours. Your BAC level rises rapidly and steadily until it reaches the maximum level.

If you are stopped on suspicion of drunk driving immediately after consuming alcohol, the alcohol will not be entirely absorbed in your body. It means as the absorption progresses, the BAC level rises towards the maximum. Any test conducted during this time of rising blood alcohol will produce falsely high BAC results. Even though the results might indicate your blood alcohol level was beyond the designated limit, this doesn’t mean your BAC was at that level at the time of driving.

Your attorney should argue that you had rising blood alcohol during the time of investigation; thus, the reason your BAC level was beyond the legal limit when the chemical or blood tests were administered. Note that the prosecutor will assume that the alcohol in your body was fully absorbed the time the blood or breath test was administered. Your Lake San Marcos DUI Attorney understands this and will argue that what matters is your blood alcohol level when you were driving and not when the tests were conducted.

No Driving

Keep in mind that it is only possible to be arrested and charged with driving under the influence only if you were operating a motor vehicle while high on drugs or alcohol. But if you were drunk or drugged but not driving, you are innocent. It’s challenging for the prosecutor to establish that you drove the car, especially if:

  • You have been involved in a car accident, and there are no eyewitnesses

  • The arresting officer found you parked

An experienced attorney will claim that you were not in physical control over the car at the time of the arrest. If the prosecuting attorney cannot prove you were driving, the DUI charges will be dismissed.

Title 17 Violation

California Title 17 is the one that governs how DUI breath and blood tests are administered. Under this Code of Regulations, particular requirements or conditions must be followed during the administration of blood or breath tests. These conditions are:

  • A 15 minutes observation duration by the police officer

  • Adequate training for professionals conducting the tests

  • Proper administering of the tests

  • Frequent calibration and maintenance of testing instruments or devices

  • Proper gathering, handling, storage and analysis of blood or urine samples

If any of the conditions are not observed, the results will be compromised, thus rendering them invalid discovery.

A DUI defense attorney can argue that the technician who drew the blood sample was not adequately trained, something that violates Title 17 regulations. He or she can further assert that the testing devices had not been calibrated or adequately maintained as per the rules hence the inaccurate results. Remember that the most persuasive evidence the prosecution has against you in a DUI charge is BAC test results. If you can make the jury or the judge question the accuracy of the BAC tests, the results will be excluded from the evidence leaving the District Attorney with a weak case.

Illegal DUI Sobriety Checkpoints

California has some of the most stringent DUI checkpoint regulations. Some of the laws include:

  • Publicly creating awareness about the DUI checkpoint

  • Ensuring there is a predetermined formula used by field officer to stop vehicles

  • Supervising officers organizing and overseeing the checkpoint

If any of these regulations are not adhered to, the checkpoint is deemed illegal. All the evidence collected in an unlawful sobriety checkpoint is inadmissible in court. For this reason, if your DUI arrest happened in a checkpoint that doesn’t meet all the state requirements, then the charges will be dismissed.

Police Misconduct

The police making a DUI arrest or investigations are required to follow the proper procedures set aside by the law. When they fail to observe these procedures by engaging in specific misconduct like unlawful acquiring or fabrication of evidence, violating Title 17 or lying when testifying in court, the DUI case will be dismissed based on misconduct. If the police report contains a lot of mistakes, the charges could also be removed or reduced. The decision to reduce or dismiss the charges depends on the severity of the misconduct.

Radio Frequency Interference

Some of the devices used in conducting blood or breath tests might be affected by radio waves. Radiofrequency interferes with the electronic elements of the testing devices resulting in falsely high BAC. The electromagnetic interference that affects these DUI testing devices can originate from:

  • Microwaves

  • Patrol cars

  • Cell phones

  • Police radios

  • Fluorescent light

An excellent Lake San Marcos DUI Attorney will argue that the results from the blood and breath tests are inaccurate because the testing devices might have been affected by RFI when the tests were conducted.

You were Mentally Alert, So you were not Driving Under the Influence

According to DUI law in California, one can be physically or mentally impaired. The majority of arresting officers testify in court that they saw the defendant exhibit physical signs of impairment and not the mental ones. Some of the physical impairment they testify about include:

  • Red and watery eyes

  • Slurred speech

  • Unsteady gait

Experts argue that alcohol or drug impairment often manifests itself in the form of mental impairment first. A Lake San Marcos DUI Attorney can contest the charges by arguing that the officer couldn't observe signs of physical impairment first without seeing those of mental impairment. This defense will apply in VC 23152a charges.

Find a DUI Defense Attorney Near Me

If you are facing DUI charges in Lake San Marcos, do not think that all is lost. Reach out to San Diego DUI Attorney at 619-535-7150. Our attorneys will tailor the DUI legal defenses highlighted above for a favorable outcome at the end of the case.