Top to Ways to Fight a DUI Charge

Just because you suffer a California DUI arrest doesn't mean you have to suffer a California DUI conviction. Experienced California drunk driving attorneys know the defenses that work. Below is a brief description of 10 of the most successful.

1. Sober People are Guilty of Bad Driving Too

One of the first things prosecutors focus on during a California driving under the influence (DUI) case is your driving pattern.  They routinely have the DUI arresting officer testify that you were driving in a manner "consistent with" someone who was under the influence of alcohol or drugs. Often, this so-called "pattern" includes allegations that you were speeding or weaving within your lane.

An experienced DUI lawyer rebuts this evidence by having the officer testify about all of the ways that you drove properly and safely.  A DUI attorney will elicit testimony from the arresting officer that:

  1. the majority of traffic violations are committed by sober people, and
  2. driving pattern is not a reliable predictor of DUI.

The National Highway Traffic Safety Administration (NHTSA) -- the nation's leading authority on DUI -- says that cues based on driving patterns are predictive of DUI only 35% of the time. Even the National District Attorneys Association admits that driving behaviors are sometimes "quite nuanced."

Example: Tony was driving on the 405 Freeway after having a late-night drink with a friend. While he reached over to change out a CD, he drifted into the next lane. Tony was pulled over by a California Highway Patrol (CHP) officer and arrested for DUI.

Tony's DUI defense attorney would get the officer to admit that Tony was otherwise driving fine. He was driving within the speed limit. He pulled over as directed. He parked without difficulty. In other words, Tony was driving with "the caution characteristic of a sober person".

Tony's California DUI attorney would get the officer to admit that sober people often drift into other lanes for reasons having nothing to do with drug or alcohol consumption.

2. Objective Symptoms of Intoxication Are Anything But Conclusive

Your physical appearance plays a big role in your California DUI investigation.  The officer who arrested you for DUI will undoubtedly testify that you were "under the influence" because you had

    • red, watery eyes,
    • slurred speech,
    • a flushed face,
    • the strong odor of alcohol on your breath, and/or
  • an "unsteady gait".

Incidentally, these "objective signs and symptoms of intoxication" are all listed on a pre-printed DUI arrest form called Form 5.2.5. This form is used by the CHP, the Los Angeles Police Department (LAPD), and other local law-enforcement agencies. Using the form, an officer can simply "check off" that you displayed these signs / symptoms, without further elaboration.

A skilled DUI lawyer defends you by addressing the "innocent" explanations that could have led to those signs. For instance:

  • allergies,
  • a cold,
  • fatigue, and
  • eye irritation

are all common causes of red eyes.

A knowledgeable DUI attorney will also elicit testimony that alcohol has no odor. What people perceive as alcohol on the breath is actually the smell of other things commonly found in both alcoholic and non-alcoholic beverages -- such as the malt and hops in beer.

Example: Sheriff Smith testified for the Orange County District Attorney that when he pulled Sam over, he observed that Sam had red-watery eyes, a flushed face and breath that smelled like beer. On cross-examination by Sam's Newport Beach DUI defense lawyer, Sheriff Smith admitted that he never questioned Sam about other possible causes.

As it turned out, Sam had been playing beach volleyball all day. The sun accounted for his red eyes and flushed face. He had also had a couple of Coronas and several O'Doul's (non-alcoholic beer), which explained the odor on his breath.

3. Field Sobriety Tests (FSTs) Don't Accurately Measure Impairment

Field Sobriety Tests (FSTs) are heavily relied on by the "prosecution team" -- the prosecutor, the arresting officer, and the California DUI criminalist. These "experts" almost always testify that you "performed poorly" on these tests. As a result, they conclude that you were guilty of drunk driving.

Your DUI defense lawyer will explain how balance and coordination during FSTs can be affected by:

  • your natural physical coordination,
  • nerves,
  • fatigue,
  • your clothing,
  • flat feet, and
  • a variety of other issues.

Example: An LAPD officer told the jury that Lisa performed poorly on her FSTs.  On cross examination, Lisa's Los Angeles DUI lawyer established that Lisa took her FSTs on Sunset Boulevard, outside a busy bar with a line of people watching. The nights was cold and windy night, cars were speeding by, and Lisa was in 3-inch high heels. Lisa's DUI attorney made it clear to the jury that any or all of these non-alcohol-related factors could have caused her "poor performance" on the FSTs.

Your DUI defense attorney will also challenge the reliability of the FSTs themselves. The NHTSA claims that FSTs accurately predict alcohol impairment 91% of the time. But this percentage – even if true – assumes that:

  • The tests administered are the three “standardized” field sobriety tests:

- the Horizontal Nystagmus Test,

- the Walk-and-Turn Test, and

- the One-Leg Stand;

  • The officer administering the tests has the proper training and experience; AND
  • Test conditions are perfect.

In reality, all of these factors can vary greatly.

4. "Mouth Alcohol" Led to a Falsely High BAC Result

Before giving you a California DUI breath test, an officer must continuously observe you for 15 minutes. This is to make sure that during this time you do not put anything containing alcohol into your mouth, including:

  • drinks,
  • medicines (such as homeopathic medicines or cough syrup), or
  • mouth spray or mouthwash.

The officer must also make sure that you do not belch, burp or regurgitate. Doing any of these things could bring alcohol from your stomach into your mouth.

The accuracy of California DUI breath testing equipment relies on the measurement of "deep lung air."  But when you blow into a breath testing device and there is alcohol in the mouth, it mixes with air from the lungs. This can cause your blood alcohol content (BAC) to register falsely high.

Example: During her testimony, Becky admitted to drinking wine with dinner before her DUI arrest. She explained that the meal was unusually rich, and that she suffers from gastroesophageal reflux disease (GERD). The meal triggered an episode of acid reflux, which cause her to burp repeatedly while the officer was administering her DUI breath test.

Becky's drunk driving defense attorney called Betty's doctor and a DUI toxicologist to the stand. The toxicologist testified that burping could produce "residual mouth alcohol." The jury then understood that Becky's GERD created mouth alcohol, which likely inflated her breath test results.

5. The Police Officer Didn't Conduct a Proper 15-Minute Observation Period

A seasoned DUI defense attorney knows how to discredit the officer's 15-minute observation period (discussed above) before your breath test.  Many officers do paperwork and/or set up the breath test machine during the observation period. Showing that the officer failed to properly conduct the observation calls into question not only your breath test results, but the entire DUI investigation.

Example: An officer from the San Bernardino County Sheriff's Department testified that he "continuously observed" Tim for 15 minutes. He said that during that time, nothing unusual happened.  On cross-examination, however, Tim's Rancho Cucamonga DUI defense attorney brought out the fact that the 15-minute period took place during the drive to the station. Tim was alone in the backseat during this time. The officer was forced to admit that he couldn't have seen Tim burp, belch, hiccup, or regurgitate, any of which might have inflated Tim's BAC results.

6. The Officer Didn't Comply With California's Title 17 Regulations on Blood and Breath Testing

California's Code of Regulations Title 17 governs how DUI blood and breath tests must be conducted. Requirements include:

  • A 15-minute observation period (described above),
    • The proper training of personnel conducting the chemical tests,
    • Proper administration of the tests,
    • Regular calibration and maintenance of the testing equipment, and
  • Proper collection, handling, and storage of blood (or, in rare instances, urine) samples.

If Title 17 regulations are not strictly observed, your breath test or California DUI blood test results could be tainted. An experienced DUI defense lawyer can use failure to follow even one regulation to call your entire DUI investigation into question.

Example: After the Ventura County District Attorney examined her expert witness -- the DUI criminalist -- the jury heard that Rick's blood test revealed a 0.10% BAC. But during cross-examination by Rick's Ventura DUI attorney, the criminalist was forced to admit that:

  • the preservative contained in the vial used to collect and store the blood sample had expired, and
  • the arresting officer didn't properly shake or store the sample.

Rick's DUI lawyer was able to convince the jury that those facts could have invalidated Rick's 0.10% result.

7. Your BAC Was "On the Rise"

Let's be clear -- there is nothing illegal about drinking before driving. What is illegal is being impaired at the time you drive.

When you drink, your BAC rises rapidly and steadily until it reaches its maximum level. During this time, your BAC is "on the rise." It takes, on average, about 50 minutes for BAC to reach peak levels -- though depending on various factors it can take as much as two or three hours.

If you had "rising blood alcohol"  when you were pulled over, the results of your DUI chemical test could be wrong. Your BAC could have risen to over the legal limit during the lengthy period of your DUI investigation. Again, the only thing that matters is what your level was at the time you drove.

Example: Sheila had a couple of quick shots with her friends at a Palm Springs bar. She left almost immediately afterward. Sheila only lives half a mile from the bar. When she was stopped by a local sheriff due to a burned-out taillight, the officer smelled the drinks on her breath. He asked started a California DUI investigation, which included field sobriety tests.

By the time Sheila got to the station and submitted to a breath test, her BAC was 0.09%. On cross-examination, Sheila's Palm Springs DUI defense lawyer got the prosecutor's expert to admit that Sheila's body probably hadn't fully absorbed the alcohol when she was driving home. Based on this testimony, the jurors concluded that Sheila's BAC was under the legal limit when she drove.

8. You Weren't DUI if You Were Mentally Alert

Officers routinely testify that DUI suspects displayed physical signs of impairment. But they don't always testify that defendants showed signs of mental impairment.

DUI toxicologists know that it is highly unusual for someone who is drunk to be physically -- but not mentally -- impaired. A savvy DUI lawyer and expert witness can establish that someone who showed no signs of mental impairment probably had some other explanation for physical signs resembling DUI.

Example: John was pulled over in Long Beach because he was holding his cell phone while driving. He was polite and coherent; he responded to questions appropriately; he followed all the officer's instructions when performing FSTs. Nevetheless, John exhibited physical signs of impairment, including a lack of balance and shaky hands. So even though his preliminary alcohol screening (PAS) breath test showed a BAC of only .07, John was arrested and charged with DUI.

Fortunately, John's Long Beach DUI defense attorney knew to retain an expert witness in DUI toxicology. The expert testified that because John was mentally alert, it was highly unlikely that he had driven drunk. John's physical impairment was more likely the result of nerves, fatigue, medication, or something other than alcohol.

9. Hypoglycemia, Diabetes or a High Protein Diet Falsely Inflated Your BAC

Normally, our bodies get fuel from dietary carbohydrates. Under certain conditions, however, the body has to break down stored fats for fuel. Such conditions include:

  • Fasting,
  • High-protein / low carbohydrate diets (such as Paleo or Atkins), and
  • Diabetes.

During the process of burning fat, the liver produces toxic byproducts called “ketones.” Ketones are chemically similar to the isopropyl alcohol found in solvents such as acetone.

Some of these ketones are excreted in the breath. Unfortunately, California breath testing devices can be tricked by ketones. This is because they don't always reliably distinguish isopropyl alcohol from ethyl alcohol, the type found in alcoholic drinks. This can lead to a falsely high BAC reading on a DUI breath test.

“Ketosis” can also produce other symptoms that resemble alcohol-based impairment, such as:

  • confusion,
  • lack of coordination, and
  • breath that smells like alcohol.
  • Example: Leo was stopped at a California DUI sobriety checkpoint in Riverside. An officer noticed that Leo's eyes were red and that Leo seemed confused. Leo performed poorly on FSTs, and a preliminary breath test showed his BAC at .10%.

Example: After Leo was arrested, he chose to take a DUI blood test rather than another breath test. The blood test showed Leo's BAC to be just .05.  It turned out that Leo had been working on a project on his computer for the better part of three days straight. During that time he had eaten almost nothing. When the project was finally finished, he had a beer to celebrate. Because Leo's Riverside DUI attorney understood the science of ketones, he was able to convince the prosecutor to drop the case.

10. The Arresting Officer(s) Didn't Follow Proper Procedures

A California drunk driving investigation is supposed to be safeguarded by procedures to protect you from police misconduct.  These include:

If any one of these protections is violated, your California DUI lawyer will request a "suppression hearing"  -- otherwise known as a "Penal Code 1538.5 hearing." The hearing will serve to:

  • exclude any evidence that wasn't properly obtained, and
  • give your lawyer a "pre-trial" opportunity to illuminate holes in the prosecution's case.

Example: Officer Joe stopped Lucy for driving too slowly and for making too wide a turn. A PAS breath test showed that Lucy had a BAC of .06%. Based on the "totality of circumstances," Officer Joe arrested Lucy for DUI. After the arrest, he asked Lucy how much she much she had to drink and whether she thought she was drunk when he drove. Only afterward -- when they were at the station -- did he read Lucy her Miranda rights.

Fortunately, Lucy's Van Nuys DUI attorney knew to request a suppression hearing. Based on Officer Joe's improper timing of the Miranda warning, the judge threw out Lucy's statements. This substantially weakened the prosecution's case. Lucy's lawyer was then able to negotiate a plea bargain to the reduced charge of reckless driving.

The laws relating to California driving under the influence charges are complex, scientific, and technical.  An attorney who understands both DUI law and DUI science can help you keep your California driver's license and keep you out of jail.

Call us for help...


If you or a loved one has been accused of DUI, we invite you to contact us at Shouse Law Group for a free in-person or telephone consultation. Our California DUI law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the Central Valley, the San Francisco Bay area, and several nearby cities.

Our California DUI law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Nevada DUI defense attorneys represent clients accused of violating Nevada’s DUI laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas. For information on Nevada DUI defenses, read our article on Nevada DUI defenses.

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