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DUI Defenses

Most defenses available in a given case, the client is unaware of. The reason is because, the defenses are located in either the calibration log of the breath/blood/urine testing machine used on you or the police report, written by the officer, outside the presence of the arrested client.

Defenses can be used at various stages of your case. Depending on the defense, dictates where and when it is to be used. The following indicates the various stages and the typical defenses that may be used, when present in your case.

Dismissal Issues:

I. Pre-trial- all stages of the case, short of picking a jury for a trial.

  • Unlawful Detention- motion to dismiss 1538.5 CPC; where the police report indicates a lack of relevant & significant observations to support the necessary probable cause or reasonable suspicion for the initial stop or detention.
  • Unlawful Arrest- Motion to dismiss 1538.5 CPC; where the police report indicates a lack of relevant & significant observations, to support the arrest of the client (usually based upon driving pattern, field sobriety test results and objective symptoms of DUI).
  • Calibration Logs- 402 E.C. Title 17 CCR says that the testing device used must be calibrated at least every 10 days or 150 people tested. The calibration officer gets sick, goes on vacation, forgets etc..you may benefit.

Acquittal Issues- not guilty verdicts

II. Trial

  • Riser Defense- this is where we can show a lower alcohol level in the street and a higher one at the station or where there is none taken in the street and a significant time between driving and the test at the station. It makes it difficult for the prosecution to prove that you were .08% at time of driving as well as whether you were impaired at the time.
  • Driver Issue- in those cases where they did not see you drive, but they arrest you based upon a belief that you drove. Riser defense comes into play as well here.
  • 3 Hour Rule- if they test you more than 3 hours between driving and test, they lose the presumption that you are DUI; law 23152(b) CVC.
  • Lack of bad driving- difficult for them to prove that you were impaired.
  • Good Field Sobriety Tests- also difficult for them to prove that you were impaired.
  • Necessity Defense- driving under the influence which, based on its necessity, serves to avoid a greater harm ex. driving a family member to a hospital in an emergency, where no ambulance was available.
  • Duress- someone forces you to drive under threat or force.
  • Unknown Consumption- someone 'spiked' the punch.
  • No DRE- on drug DUI cases, there needs to be a person certified to testify that you were under the influence of the drug at the time of arrest (Drug Recognition Expert).
  • Dental Appliances- can pool alcohol under bridges, partials and false teeth structures that give a false positive in the breath machine.
  • Diabetes- can create naturally produced alcohol in your blood.
  • Calibration Logs- 402 E.C. Title 17 CCR says that the testing device used must be calibrated at least every 10 days or 150 people tested. The calibration officer gets sick, goes on vacation, forgets etc..you may benefit.
  • Continuous Observation- in breath cases, the officer must observe (continuous) you for burping 15 minutes prior to the test.

Damage Control

III. Plea Bargaining- to protect the client. There are 2 types:

  1. Charge Reduction- where the defenses above are brought to the prosecutor and he/she agrees to dismiss the DUI, but has you plead to a lesser driving offense instead.
  2. Penalty Reduction- this is where the case does not qualify for reduction in the charge. We mitigate (reduce, minimize) the penalties against you by negotiating with the prosecutor in the case.

Approximately 98% of our cases end in dismissal or plea bargain. The reason is simple, if you have a good chance at trial, the prosecutor will know it too and deal with us accordingly. If you don't have a good chance at trial, most people do not want to chance it.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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