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San Diego DUI Attorney
What
defenses are there in a DUI case?
Potential defenses in a given drunk driving
(DUI) case are almost limitless due to the
complexities of the offense. Roughly
speaking, however, the majority can be
broken down into the following areas:
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Driving. Intoxication is not enough: the
prosecution must also prove that the
defendant was driving. This may be difficult
if, as in the case of some accidents, there
are no witnesses to his being the driver of
the vehicle.
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Probable cause. Evidence will be suppressed
if the officer did not have legal cause to
(a) stop, (b) detain, and (c) arrest.
Sobriety roadblocks present particularly
complex issues.
-
Miranda. Incriminating statements may be
suppressed if warnings were not given at the
appropriate time.
-
Implied consent warnings. If the officer did
not advise you of the consequences of
refusing to take a chemical test, or gave it
incorrectly, in some states (including
California) this may invalidate a DMV
license suspension based upon a refusal to
provide a breath/blood sample.
-
"Under the influence". The officer's
observations and opinions as to intoxication
can be questioned -- the circumstances under
which the field
sobriety tests were given, for example, or
the subjective (and predisposed) nature of
what the officer considers as "failing".
Too, witnesses can testify that you appeared
to be sober.
-
Blood-alcohol concentration. There exists a
wide range of potential problems with blood,
breath or urine testing.
"Non-specific" analysis, for example: most
breath machines will register many chemical
compounds found on the human breath as
alcohol. And breath machines assume a
2100-to-1 ratio in
converting alcohol in the breath into
alcohol in the blood; in fact, this ratio
varies widely from person to person (and
within a person from one moment to another).
Radio frequency interference can result in
inaccurate readings. These and other defects
in analysis can be brought out in
cross-examination of the state's expert
witness, and/or the defense can hire its own
forensic chemist.
Testing during the absorptive phase. The
blood, breath or urine test will be
unreliable if done while you are still
actively absorbing alcohol (it takes 30
minutes to three hours to complete
absorption; this can be delayed if food is
present in the stomach). Thus, drinking "one
for the road" can cause inaccurate test
results.
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Retrograde extrapolation.
This refers to the
requirement that the BAC be "related back"
in time from the test to the driving (see
question #17). Again, a number of complex
physiological problems are involved here.
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Regulation of blood-alcohol testing. The
prosecution must prove that the blood,
breath or urine test complied with state
requirements as to calibration, maintenance,
etc.
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License suspension hearings. A number of
issues can be raised in the context of an
administrative hearing before the state's
department of motor vehicles.
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