Top 10 DUI Defenses

When you are facing a DUI in Los Angeles County or throughout the state of California, you are up against serious, long-term consequences that can affect your ability to stay employed and carry on with your daily life. It is therefore imperative, that you find a DUI defense lawyer who understands the California Vehicle Code as well as the inner workings of the court system. 

At Los Angeles DUI Lawyer, we have vast experience in fighting charges of DUI and in forming the best possible defense strategy for each case we take on. Below, we present the top 10 DUI defenses that we put to use on a routine basis:

  1. It may have been "bad driving," but it was not a DUI.

California Vehicle Code Section 23152(a) declares that those whose driving has been impaired by consumption of alcohol are guilty of Driving Under the Influence regardless of whether or not their BAC level reaches .08%.

Many are pulled over for DUI based on erratic of poor driving patterns observed by a law enforcement officer, but in fact, such driving patterns (according to the National Highway Traffic Safety Administration - NHTSA) are only reliable to predict a DUI about 35% of the time.

Speeding, leaving your lane, weaving back and forth, changing speeds, and even reckless driving can all occur without driving under the influence of alcohol/drugs. And the majority of traffic violations do not involve alcohol at all.

  1. "Observable symptoms of DUI" can be misleading.

Arresting officers often rely on "signs of intoxication," such as slurring of speech, red and watery eyes, the smell of alcohol on one's breath, and difficulty in walking steadily. In fact, there is even a special police form (Form 5.2.5) that allows the arresting officer to check off such signs.

However, any and all of these signs can occur for other reasons as well. Dizziness and tiredness could lead to an "unsteady gait," a cold or allergy could cause red and watery eyes, and even the "smell of alcohol" can be mistaken due to the consumption of many alcohol free substances.

  1. Field Sobriety Tests (FST's) are often unreliable.

Even though field sobriety tests are used by police in deciding on whether or not to make a DUI arrest and often form a cornerstone of the prosecution's case, they do not reliably predict driver impairment. Exhaustion, nervousness, flat feet, lack of coordination, and a variety of other factors can negatively affect your performance on any FST.

The NHTSA says that FST's indicate driver impairment due to consumption of alcohol over 90% of the time. Besides the fact that there would be 10% of instances where a false conclusion was indicated by FSTs, the 90% figure only applies when the tests are administered perfectly (which rarely is the case).

  1. BAC readings were thrown off by health conditions or dietary factors.

Diabetes, hypo-glycemia, GERD, and certain other medical conditions are known to sometimes cause falsely high BAC test results. The same is true of some high-protein and low-carb diets.

Any of these diets or conditions, as well as simply fasting, can cause your body to break down stored fat instead of newly ingested carbs. In the process of burning this stored fat, the liver will produce ketones, which are very similar to isopropyl alcohol. This alcohol not only can throw off blood tests but also breathalyzer tests since it can be diffused in exhaled air. 

Unfortunately, the breathalyzers used by California police do not reliably distinguish between isopropyl/ethyl alcohol. Additionally, the process of ketosis can lead to symptoms similar to those an intoxicated person might display.

  1. Alcohol in the mouth can throw off the BAC measurement.

California Vehicle Code Section 23152(b) declares that driving with a BAC of .08% or higher constitutes a DUI. However, BAC readings can be artificially high if alcohol is present in the mouth of the one tested.

And it is not only alcoholic beverages that can linger in the mouth and throw off breathalyzer test results, but alcohol-containing medicines and mouthwashes can do the same. Air from deep in your lungs (alveolar air) must be the basis of the breathalyzer test, but that air can mix with "mouth alcohol air" and throw off the reading considerably. Additionally, if you burp, belch, regurgitate or vomit during or just before the test, the results will most certainly be falsely high, which is why officers are required to conduct a continuous 15-minute observation period of the arrestee JUST PRIOR to the arrestee blowing into the device.

  1. The arresting officer failed to fulfill the 15 minutes of observation.

Often, the arresting police officer will wait 15 minutes but do not truly observe suspects closely throughout that period. They are busy doing paperwork or getting the breathalyzer ready. It is tedious and "boring" to watch for 15 minutes, but unless this is done, the DUI arrest and the PAS test results may be invalidated due to a Title 17 violation.

  1. The traffic stop or arrest were conducted unlawfully.

When arresting officers do not follow certain legal procedure in making stops of vehicles and subsequent arrests, it can possibly lead to evidence obtained being declared inadmissible and the whole DUI case being dismissed. 

First of all, there must have been reasonable suspicion for pulling you over in the first place. Reasonable suspicion does not mean the Police have a right to stop the driver of a vehicle because he or she is black, Latino or Muslim looking. Police are allowed to pull over those who violate traffic laws but they cannot to do so simply on "a hunch that criminality is afoot" or to "see if they can find anything."

Secondly, don't think that since the police did not read you your Miranda Rights before being investigated for DUI and before being placed under arrest that the charges will just disappear. These Miranda warnings are rarely used in DUI cases because the second the police approach your car and smell alcohol, the Law states they can conduct a DUI investigation. Which means the police can order you out of your car, ask you DUI related questions, tell you to do FST's, make you blow or bleed a chemical test and then arrest you because you never exercised your right to remain silent. Remember, YOU HAVE A RIGHT TO REMAIN SILENT. EXERCISE THAT RIGHT. Never talk to the police. Never submit to Field Sobriety Tests. Never submit to a Breath Test. Always take a Blood Test.

If your rights were in any way violated during the DUI arrest, your DUI defense lawyer can ask the judge for a special hearing (under California Penal Code Section 1538.5) to attempt to bar evidence illegally obtained. During this hearing, the defense can also try to expose enough weaknesses in the prosecution's case to convince them to drop the charges.

  1. California Title 17 was violated by the arresting officer.

Title 17 sets up very specific protocols as to how an officer must carry out breathalyzer and blood tests. Besides observing the DUI suspect for 15 minutes continuously, the equipment used must be properly maintained and correctly calibrated. The blood samples must be collected and stored in a way that ensures they are not contaminated. Officers must be trained to follow these procedures and must implement them to the letter.

  1. A rising BAC level indicates a lower one while driving.

After consuming alcohol, on average, it takes 50 minutes to 2 hours before your BAC peaks and begins to fall. In some cases, it can take 2 or 3 hours before you reach peak level.

If the investigation by police who pulled you over took a significant amount of time (before your BAC was measured), and especially if your reading was at or barely above .08%, then a still-rising BAC could mean you were under .08 while driving which is what the law criminalizes.

  1. Lack of mental impairment makes physical impairment unlikely.

If you showed signs of being mentally alert, it is statistically very unlikely that you were under physical impairment due to alcohol consumption, even if you were "checked off" on DUI symptoms by the arresting officer and failed the field sobriety tests.

Oftentimes, law enforcement officers pay little or no attention to signs of mental impairment/alertness, focusing entirely on the physical. But this can become a weakness in the prosecution's case.

A defendant who displayed mental alertness and can produce other reasonable explanations for failing FSTs and showing "DUI related symptoms" can likely win his/her case at trial.

Contact Us Today for Help - We are the Lawfirm Who Got 120 Cases Dismissed in One 12 Month Period

Los Angeles DUI Lawyer stands ready to come to you aid and win the best possible outcome to your DUI case. Using the defense strategies listed above, and others as well, we can often get charges dismissed or win an acquittal. Where that is not possible, we know how to negotiate a favorable plea agreement to reduce charges/sentences.

To learn more or for a free DUI consultation, contact us 24/7 by calling 424-281-3020.

Free Case Evaluation

Call 424-281-3020 24/7 if you want to retain excellent attorneys.

Los Angeles DUI Defense Attorney Jeff Voll

After serving his country for 6 years as an infantry sergeant, Edward Blum left military service and went to law school. Upon graduating he took up the mantle of defending the constitution one person accused of a crime at a time. For over 20 years Edward Blum has fought and tried misdemeanor and felony criminal cases in Southern California. Edward Blum has tried hudnreds of cases from possession of drugs to murder. When he's not standing up to prosecutors, Edward Blum lectures on each citizens rights and how to interact with cops (Hint: Don't).

Los Angeles DUI Lawyer
Ed Blum

Associations & Awards

Vice President of California DUI Lawyers Association

California DUI Lawyers Association

AVVO Rating

Los Angeles DUI Lawyer

3460 Wilshire Boulevard #410F
Los Angeles, CA 90010
424-281-3020

1776 North Highland Avenue #2
Los Angeles, CA 90028
424-281-3020

Google Reviews