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DUI Dunk Driving

10 Ways To Fight and Beat California DUI Charges

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DUI - Drink and DriveIndividuals who are facing DUI charges confront very serious consequences, including the possibility of losing their driving privileges, being thrown behind bars, having to pay a large fine and having to comply with court restrictions. To avoid these negative consequences, it is important that they lodge a viable defense with an experienced DUI attorney. The applicability of a defense depends on the circumstances involved in the case. Some successful DUI defenses include:

1. Bad stop by law enforcement officer

Before a law enforcement officer can pull someone over, he or she must have reasonable suspicion that a person in the vehicle has committed a crime. In some cases, law enforcement officers may observe the driver for some time in order to detect possible signs of intoxication, such as weaving between lanes. In other cases, a law enforcement officer may stop a driver for an infraction such as a missing tail light or an expired tag. If the reason for the stop was a farce, everything that happened after the stop may be found inadmissible after a DUI defense lawyer challenges the validity of the stop. Even when there is a justification for the stop based on the driver’s behavior, the National Highway Traffic Safety Administration has found that driving patterns predicted incidents of DUI in only 35 percent of cases. Sometimes innocent behaviors such as clicking on a GPS unit or fiddling with the audio system can cause momentary distractions that mimic the effects of an impaired driver.

2. Objective Signs of Intoxication

After a law enforcement officer pulls over a driver, he or she attempts to find anything to justify further detainment. If he or she suspects drunk or drugged driving, he or she may look for potential signs of impairment, such as red or bloodshot eyes, a flushed face, slurred speech or other so-called objective signs of intoxication. However, these may be symptoms of other issues unrelated to impairment. For example, medication may cause many of these symptoms. Being tired or fatigued can account for slurred speech or red eyes. Allergies, dust, eye irritation and many other innocent causes may be to blame for these symptoms.

3. Faulty Field Sobriety Tests

If a law enforcement officer detects possible signs of intoxication, he or she may request field sobriety test. There are a variety of field sobriety tests that are meant to measure a person’s concentration, ability to follow instructions and his or her balance. These take on a variety of forms, including requiring the suspect to recite the alphabet, count, sign a paper, follow a flashlight with his or her gaze or complete other seemingly simple tasks.
The standardized field sobriety test consists of three different tests that take a few minutes to complete. The first test is the horizontal gaze nystagmus test, which measures a person’s involuntary eye movements. The walk and turn test requires the suspect to walk heel to toe for a number of steps and then to turn around and walk back in the opposite direction. Finally, the one-leg stand test requires the suspect to keep one leg off the ground and maintain balance. These three tests when used together have been scientifically valid as evidence of demonstrating intoxication.

In California, law enforcement officers may use non-standardized DUI field sobriety tests. These include the finger-to-nose, hand pat, numbers backward, finger count, and the Rhomberg balance test. The results of these tests are used as evidence of intoxication against the defendant.

A law enforcement officer administers these tests with the intention of using them as evidence against the defendant. However, having this tunnel vision can result in the law enforcement officer not taking into account factors that can cause poor test performance. For example, wearing boots or heels, having a foot injury or poor coordination can cause people to fail these types of tests even if they have had nothing to drink. Difficulty speaking English or understanding instructions can also have an impact on a person’s performance. Environmental factors such as bad weather, slick roadways, heavy traffic or uneven payment can also impact suspects’ ability to perform these tasks.

Field sobriety tests may also bring about inaccurate results if the law enforcement officer did not administer the test properly. He or she may not have had adequate training. When certain steps are not carefully followed, the test results are not as accurate. Due to the potential for inaccurate test results caused by these various factors, California law permits drivers to refuse field sobriety tests.

4. Inaccurate Preliminary Alcohol Screening (PAS)

Another potential defense is that the breath test administered on the roadside is not accurate. California law enforcement officers administer the Preliminary Alcohol Screening (PAS), which is a preliminary alcohol screening test. The device used to complete the PAS tends to be less accurate than the station house machines. When a concentration of 0.01 can make the difference between somebody falling within the legal limit or over it, it is vital that the test is accurate. The portable machine can cause false positives due to the consumption of certain foods, drinks, medicines or other products. Additionally, a law enforcement officer is required to monitor the suspect for several minutes to ensure that he or she did not burp, vomit or regurgitate. These actions can cause a person’s breath test to yield an inaccurate result. It is possible that during such monitoring that the law enforcement officer’s attention may have drifted elsewhere, such as talking to another officer at the scene, monitoring oncoming traffic or completing paperwork. Certain medical conditions may cause a blood alcohol concentration being high without a true impairment being the cause of it.
In California, a suspect can refuse to take the PAS. However, if he or she refuses a chemical breath test or blood test at the station, he or she will face a one-year license suspension for the refusal. Additionally, the prosecution can use the refusal as evidence against the defendant at trial for the DUI charge.

5. Rising BAC Level

An interesting defense to DUI charges is that of the rising BAC. This defense alleges that the defendant’s BAC was below the legal limit at the time that he or she was driving but that it continued to increase between the time of the traffic stop and when he or she took a breath test. This can occur if a defendant had recently consumed alcohol and the alcohol was still being absorbed during this time period.

6. GERD Defense for DUI

A medically-associated defense is that of the Gastroesophageal Reflux Disease (GERD) defense. When a breathalyzer test is given, it is assumed that the amount of alcohol that is in a person’s mouth is equivalent to the amount of alcohol in his or her body. However, GERD, heartburn or acid reflux can cause a person to have mouth alcohol, meaning that the BAC reading is higher from the mouth sample than in the stomach sample. During typical digestion, food passes into the stomach and the lower esophageal sphincter closes so that the contents in the stomach do not flow back into the esophagus. Some people may have a medical condition that causes the lower esophageal sphincter to open up and allow the stomach contents and stomach acid to flow back into the esophagus. This results in a higher BAC reading.

7. Faulty Breathalyzer Test

After administering a preliminary alcohol screening test, many law enforcement agencies bring the defendant to a station house and administer another breathalyzer test. A challenge to the accuracy of this breathalyzer test may be based on a theory that the machine does not work properly or that it had not been calibrated recently. Poor maintenance records may substantiate this defense. Another plausible theory is that the law enforcement officer who administered the test did not administer the test properly.

8. Improper Administration of a Blood Test or Protocol

If the prosecution is relying on results from a blood test, a criminal defense lawyer may challenge the administration of the blood test. In particular, a criminal defense lawyer may look to see if the blood test maintained its chain of custody or whether it was in a location that it could have been tampered with or altered.

9. Improper Police Conduct

In some cases, a law enforcement officer may have acted in an improper manner throughout some aspect of the investigation or handling of evidence. A criminal defense lawyer can explore the law enforcement officer’s actions and previous misconduct to determine if this may have contributed to the DUI arrest and findings.

10. Extenuating Circumstances

Rather than arguing that the defendant was not intoxicated or that the test results were not accurate, a criminal defense lawyer may argue that there were extenuating circumstances that caused the defendant to drive in an impaired state when he or she ordinarily would not do this. For example, a defendant may have driven in this state to avoid serious injury or death if he or she was being threatened or may have needed to drive an injured relative to the hospital. In other circumstances, a person may have become intoxicated without his or her knowledge, such as unknowingly consuming a spiked beverage.

These are just a few of the potential defenses that may be raised in a DUI case. Our experienced criminal defense lawyers can explore whether these defenses may apply to a client’s case. He or she can also explain the success of these defenses and others and provide counsel regarding trial strategy. If you have been charged with with Driving Under the Influence charges in the counties of Santa Clara, Alameda, San Mateo, San Francisco or Contra Costa contact us at 408-724-9200 or email at clients@walialawfirm.com.

Infographic - Prop 64 Highlight

Infographic – What it means to Legalize Marijuana with Prop 64?

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Coming Tuesday (November 8, 2016), Californians will vote on Proposition 61 to legalize marijuana. Polls predict that this proposition will pass.

It would legalize limited marijuana possession and consumption for adults 21 or older and allow personal cultivation of up to six plants. The proposition would establish a Bureau of Marijuana Control to regulate the commercial marketplace for pot. Tax revenue from marijuana sales would go toward funding this bureau. Any remaining funds would be used for public health campaigns aimed at preventing youth drug use, environmental remediation of public lands used for illegal marijuana cultivation, and training of law officers to enforce the new law. Public consumption would remain illegal.

We have put together an infograph to highlight the what it will mean if Marijuana becomes legal in California by passing Proposition 64.

For more details about this proposition, please visit https://ballotpedia.org/California_Proposition_64,_Marijuana_Legalization_(2016)

Infographic - Prop 64 Marijuana Legalization

10 Things You Probably Don’t Know About DUI In California

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Drunk Driving (DUI) Charges are criminal charges that can result in misdemeanor or felony convictions depending on the circumstances. California prosecutes drunk driving under two different criminal statutes. The most common charge for DUI is under California Vehicle Code Section 23152(b). This code section makes it a crime to operate a motor vehicle with a Blood Alcohol Level (BAC) of .08 or above. The State only needs to prove that you were operating a motor vehicle with a BAC of .08 or above. The second charge used for DUI is under California Vehicle Code Section 23152(a) that makes it illegal to operate a motor vehicle while “under the influence of any alcohol or drug.” Under this code section, you can be arrested for DUI (Driving Under the Influence) if you have any alcohol or impairing drugs in your system. DUI charges involving injuries are prosecuted under California Vehicle Code 23153. DUI charges involving injuries have significantly higher penalties.

Other things you probably don’t know about DUI in California include:

1. You or Your Attorney Must Attend Your Initial Court Date

California DUI citations issued by law enforcement officers contain the date, time, and location of your first criminal court appearance. In most counties, you may appear through an Attorney for misdemeanor DUI charges if you have retained an Attorney. If you have not retained an attorney or are charged with a felony DUI, you must appear at your initial court date. Failure to appear at your hearing may result in the judge issuing a bench warrant for your arrest. At your first DUI court date otherwise known as arraignment, the judge will ask you if you would like to have the charges read out in court. If you have an attorney, the attorney will waive this instruction and arraignment by the court. The judge will also ask for your initial plea to the charges. You would enter Not Guilty pleas at that time. The case is then continued to a date for discussion or conference. If you plead guilty, the judge will generally impose sentence immediately in most misdemeanor cases.

2. The Court will not Automatically Appoint a Public Defender

You are facing a criminal charge for your DUI arrest; however, you are also facing an administrative hearing with the California Department of Motor Vehicles. You are entitled to legal counsel in the criminal proceeding if you cannot afford a private attorney but you are not entitled to legal counsel for the DMV hearing. The state will not automatically appoint a public defender to represent you, even though you may request an attorney. Public defenders are only appointed to represent individuals whom the court determines cannot afford an attorney (i.e. unemployed, fall below certain poverty guidelines, etc.). If you qualify for a public defender, you should understand that public defenders handle hundreds of cases and they do not specialize in DUI cases. Additionally, Public defenders cannot represent you for the DMV hearing.

3. You must Contact the California DMV within 10 Days of your DUI Arrest

California DUI laws require that you contact the Department of Motor Vehicles within 10 days of your arrest for driving under the influence. Even though the temporary DUI driver’s license you have been issued will expire 30 days after your arrest, that period is extended if your DMV hearing cannot be scheduled within those 30 days. If you do not request the DMV hearing within 10 days, you lose your right to have a DMV hearing and license is suspended 30 days after the DUI arrest. Our attorneys have successfully represented individuals in DMV hearings to have their driving privileges reinstated pending the outcome of their case.

4. Penalties for a DUI Conviction in California are severe

If you are convicted of driving under the influence of drugs or alcohol in California, you face severe penalties. Depending on the circumstances of your DUI conviction, the judge may order you to work for the sheriff, incarcerate you in jail or in a state prison for a few days or several years. In addition to imposing jail time, the judge may also order formal or informal probation, impose high fines, order financial restitution, revoke or suspend your driver’s license, impound your motor vehicle, install an ignition interlock device on your motor vehicle, and order you to attend mandatory drug and alcohol treatment programs.

5. You will have a Criminal Record

Driving Under the Influence in California is a crime. If you are convicted of DUI, you will have a permanent criminal record that could have negative impact on future job opportunities or other life events.

6. If you plead not guilty, your DUI Case May Take Several Months to Complete

Some California DUI cases can take years to complete if the case involves a fatality or serious bodily injury to another party. Even a simple DUI case can take several months to complete depending on the court schedule and the time involved for your attorney to investigate the circumstances of your DUI arrest to build a strong defense strategy to dismiss the charge or minimize the consequences of a guilty verdict.

7. A DUI Conviction Effects More Than Just Your Automobile Insurance

If you are convicted of DUI in California, your automobile insurance carrier can deny future coverage. Even if the carrier does not drop your insurance or you obtain insurance through another carrier, a single DUI conviction can greatly increase your automobile insurance rates for several years. A DUI conviction may also increase your home insurance rates and health insurance rates because many insurance companies view a DUI conviction as a negative risk factor when quoting insurance rates.

8. A Felony DUI Conviction Effects Your Right to Possess and Own a Firearm

If you are convicted of a felony in California, you are prohibited from owning or possessing a firearm or weapon of any type. Depending on the circumstances of your arrest, you could be facing a felony DUI charge. A felony conviction infringes on your right to protect yourself. It can also limit the jobs you may obtain if the job you desire requires that you carry a firearm as part of the job description.

9. California is an Implied Consent State

If you refuse to submit to a Preliminary Alcohol Screening (PAS) breath test or refuse to take the Field Sobriety Tests (FSTs), the officer cannot arrest you for your refusal. An officer must have probable cause to arrest an individual for driving under the influence in California. In most cases when an individual refuses to submit to a PAS or the FSTs, the officer will allege he has probable cause for a DUI arrest because he “observed you swerving in the road, you failed to obey traffic laws or signals, your eyes were watery or bloodshot, you smelled of alcohol, your speech was slurred, and/or you exhibited signs of being unsteady on your feet or lacked coordination.” Regardless, the officer cannot use your refusal to submit to roadside sobriety tests as probable cause for a DUI arrest.

However, once you have been arrested for DUI, California’s implied consent law requires that you submit to a chemical test of your blood or breath to determine your BAC level. If you refuse to submit to the chemical test, your refusal will be used against you in court and the DMV will suspend your driver’s license for one year.

10. You Can Have a DUI Dismissed in California

An arrest for driving under the influence in California is not a guilty verdict. As with any criminal charge, the prosecution has the burden of proof. It must prove that you were impaired by alcohol or drugs while operating a motor vehicle. As experienced San Jose DUI attorneys, we have successfully defended numerous DUI cases.

Hiring an Experienced California DUI Attorney Improves Your Chances of Minimizing Negative Outcomes

If you have been arrested for a DUI in San Jose Bay Area, call our offices for a free confidential DUI consultation. Our staff of legal professionals immediately begins investigating the circumstances surrounding your DUI stop and your subsequent arrest to determine if your legal rights were violated. We look at issues related to probable cause for the DUI stop, whether the officer performed the field sobriety tests accurately, and if the devices used to determine your BAC level were used property and were functioning property. Our attorneys have several DUI defense strategies they use to challenge your arrest and fight to ensure your constitutional rights were not violated.

Whether hosts of drinking parties could be held liable under new California laws?

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The California Supreme Court is considering whether the hosts of drinking parties where there is a cover charge are considered sellers of alcohol, who aren’t entitled to immunity for serving alcohol to drunk guests.

The court will consider the issue in the case of Jessica Manosa, who was 20 in 2007 when she decided to throw a party at an unoccupied rental parent owned by her parents. She didn’t have their permission to do so.

Word of Manosa’s party spread by text message, and many of the guests didn’t know their host. The attendees drank liquor, danced and got intoxicated. One guest was asked to leave after he began dropping his pants while dancing, according to court records. He drove way, running over a 19-year-old student who was also at the party. The student was killed. His parents are now seeking to hold Manosa and her parents liable for his death.

The case will determine whether young people who host underage drinking parties and charge admission can be held liable if a drunk guest hurts themselves or another person. The Supreme Court’s ruling could set a major precedent – currently, the law has long protected party hosts in California from alcohol-related lawsuits. The Supreme Court in the 1970’s made social hosts who serve alcohol to drunk guests liable for their harmful behavior, but the state legislature carved out an exception for individuals who sell alcohol in this kind of setting.

The lower courts have ruled that the cover charge of $3-$5 that Manosa implemented was simply to defray the cost of the alcohol, and not to turn a profit – thus rendering Manosa not liable.

Meanwhile, Thomas Garcia – the intoxicated man who struck the student – pleaded guilty to voluntary manslaughter and received a 14-year prison sentence. According to The Los Angeles Times, Garcia said he’d been drinking heavily before he arrived at Manosa’s party and had no memory of striking Andrew Ennabe.

California laws regarding drunk driving are some of the toughest in the nation. California law is also becoming harsher servers of alcohol. If you or a family member is facing such a situation whether in terms of civil or criminal liability, call an experienced Bay Area Defense attorney for a consultation!