DUI Defenses - 8 Ways to Win Your Case

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Police reports are often filled with false facts


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1

Rising Blood Alcohol Defense

DUI is one of the most science heavy areas of law and some people only look at the numbers or the dui blood alcohol. It is not given enough respect by a lot of attorneys. Some attorneys will see it as a number only. A high blood alcohol alone will not make the prosecution’s case. For example, in a .24 case a person should medically be a goner. If he is still operating and has the fine motor skills then there is disconnect. Something must be wrong. This is where the defense begins in a high DUI blood alcohol. A high dui blood alcohol reading coupled with good facts tend to show something is wrong with the machine or a police officer’s procedures.

​One of the strongest DUI Defenses is the rising blood alcohol defense. It is not illegal to be over .08 BAC back at the police station. The law states that you must not be over .08 at the time of driving. A common defense in DUI is called the rising blood alcohol defense. This defense involves recent drinking. If you drank less than an hour ago and started driving then this defense will be available to you. This destroys their rising blood alcohol defense.

DUI Laws in California

DUI Laws in California are based on the A count and the B count. The A is the generic count and the B is the over .08.

Because of absorption and how alcohol is always moving thru the body, if you recently drank then the prosecution’s experts will not know for sure what your blood alcohol content is at the time of driving. They will never know what your blood alcohol is at the time of driving.

This means that your blood alcohol level can be lower at the time of driving. For example, if you were a .10 at time of testing (an hour after driving) then at the time of driving you could have been .08 or even a .07. The bottom line is you could have been lower at the time of driving. The prosecution can also use the opposite end of the rising defense which is called Retrograde Extrapolation. The prosecution can estimate as to what it is at the time of driving. However if you said you stopped drinking two or three hours ago than the prosecution will give a higher estimate because they are assuming you are in the elimination stage. 

Fight your case with the Rising Blood Alcohol Defense 

Your alcohol numbers may indicate a rising blood alcohol defense. 

It’s important to know how to do a Widmark Calculation manually. By doing so, you will know where their expert will be and what the prosecutor will ask. The most common calculations are number of drinks and what will a person alcohol level be with this amount of drinks, time, weight, etc, and the Retrograde Extrapolation one. However, these questions are packed with assumptions. Let’s take a look at one example.

There are many different beers out there and different levels of alcohol in each beer. Take a step into a brewery and you will see some brewery will over 50 types of beers. Too often our clients are not aware of the alcohol content of some of these beers. It’s not their fault. How many of us actually check the alcohol content of our drinks? It’s because of this that some good people make bad choices and not know about it. Alcohol content in beer can range anywhere from 4% to 10%.

Often times our clients will know their limits. They will only drink two beers. However the alcohol content can make things sticky when they get popped. This is why a DUI Lawyer is worth his or her weight in gold. Often times an out clients will say they only had 2 beers and be at a .12 BAC. Some lawyers and all prosecutors and state’s experts will write this person off as a liar. Even worse the prosecutor will go after a consciousness of guilt jury instruction which will make it harder for a person to overcome the presumption of guilty.

Let’s take a look at this example:

Scenario 1

Mark Gallagher weighs 160 pounds. He goes to Chuck e’ Cheeses but doesn’t eat the pizza and downs 2 Bud Ice Light 16 oz. at 4.1% alcohol. After 30 minutes of absorption he will have .06% of alcohol in his system.

Scenario 2

Mark still weighs the same. Instead he goes to BJs and skips lunch because he thinks lunch are for sissys. BJs has many different types of beers. Mark decides to try something new. He decides to try 2 16 oz. Breckienridge Christmas Ale. Little does he know that this beer is 7.4% alcohol. After 30 minutes of absorption on an empty stomach he will have a .10% in his system. When questioned, mark will answer he had two beers.

The prosecution and their expert will define a standard drink as 12 oz. 4% alcohol. This leads to an inference that the answer Mark gave is a lie. The prosecution will then ask for a jury instruction instructing on consciousness of guilt.

By calling BS on this, we show the jury there are much more variables at play. This is also known as the 2 beer defense.

2

Attacking Retrograde Extrapolation

There are precautions that an officer must take to protect the person being tested. One of these is the 15 minute observation to prevent alcohol contamination.

DUI Laws in California

Retrograde Extrapolation is used to guess the BAC of a driver at the time of driving.

Retrograde Extrapolation is used to guess the BAC of a driver at the time of driving. This is the mathematical process based on averages and assumptions (Guess work) by which someone’s blood alcohol at the time period of driving is estimated by projecting backwards from a later chemical test. This involves calculating the absorption and removal of alcohol in the interim between driving and testing.

The rate of removal in the normal person is commonly estimated at .015 to .020 grams per deciliter per hour (g/dl/h)Template: Http://www.ncbi.nlm.nih.gov/pubmed/1507264, although once more this can differ from person to person and in a given person from one moment to another.

There are weak spots in this technique. Metabolic functions can be affected by many aspects, including points as body environment, the form of alcoholic beverage consumed, and the total and form of meals consumed.In addition to this the reported drinking time are never reliable. A person can really stop drinking 5 minutes before driving but was too afraid and just told the police officer they he stopped 2-3 hours ago. Therefore the calculations based on the flawed breath reading and the additional calculations can be off. Most people will say they stopped drinking a few hours ago. However, the truth is most people get scared when they see a police officer so the most logical thing is to say you had your drinks a few hours ago.

Attack Retrograde Extropolation

Often times prosecutors do not use the correct science for your case and will overestimate your blood alcohol.  

3

Use DMV to Discovery in Advance in Court

Other common DUI Defenses is using the DMV to get discovery in advance of court. The DUI and DMV are complicated especially for a person who is facing a DUI. After the arrest, you must request a hearing within 10 days of the arrest. You or your private attorney can speak to them either in person or on the phone. They will inquire if the officer had reasonable suspicion to pull you over, had probable cause to arrest you, and if the BAC was 0.008% or above.

DUI Defenses

With the proper footwork and proper knowledge of DUI Defenses you can use the DMV hearing to subpoena to get access to evidence during the DMV hearing. If this is done right, before you head off to court you will have the police reports, the maintenance, calibration for the machines and even the reports. This can be used to your advantage when dealing with an uninformed prosecutor.

There are several things that can be used as evidence in your arsenal of DUI Defenses that can be subpoenaed early. These evidences can mean the difference between a guilty or not guilty verdict by 12 people or an offer of versus no offer. These evidences can be video evidence, breath logs, and audio evidence and tow truck logs. These DUI defenses let’s take a look at the significance and how it can affect your DUI case.

4

Dash Cam videos are often helpful to contest a stop

Another item in your arsenal of DUI Defenses is having the video. Many departments have Dash Cams and Body Cam Videos (CHP, Garden Grove Police Department, Fullerton, Orange County Sheriff, Irvine,)

Dash Cam videos are often installed on CHP vehicles. They automatically go off and start recording once a stop has been initialized. In addition they are continuously recording which means that once a stop is initialized by the officer the recording will go back 30 seconds and capture the driving. This is to prevent officers from turning them off and on whenever they want.

1st DUI

1st DUI are overwhelming

One the most helpful evidence you can get for your case is the police dashcam. Video evidence captures the driving. There are a lot of DUIs which involve no bad driving at all. These DUI includes reasons for the pullover such as a broken tail light or a checkpoint. Another benefit from having the video is that they capture Standard Field Sobriety test. Often times, an officer will conduct field sobriety test and embellish in their reports. In addition to this, the officer will conduct the test in front of the camera.

Many departments will have audio recording on the officers. These devices were originally made to aid an officer in his reports. The officer would use these to make his report. However, these can also be used as evidence to deconstruct the state’s case; these prove invaluable in refusal cases where officers need to read the refusal to a person for the suspension to be valid. These audio tapes in yourcase are used to show how you were speaking at the time. For example, one of the main things that always appear in a DUI case is the speech. The officer will say 99% of the time that the person had slurred speech. This is regardless of whether he ever met you. This is also regardless of whether English is your second language.

CHP Cars have Dashcam Videos

Use an attorney's ability to see what really happened. 

5

Tow Truck Logs and Computer Aided Dispatch

Another popular tactic in DUI Defenses is the Tow Truck Log. Many people do not understand why tow truck logs are a great tool in attacking a DUI case. The truck is an important tool because it shows when an officer has made the important decision that he needs a tow truck. Imagine how you feel if the moment you got pulled over a tow truck was already called. The time a tow is called is significant for the purpose of determining when an officer has made up his mind in the DUI investigation. For example, it would very hard for an officer to hold up his veil of objectiveness and say he was merely investigating if he had already called the tow truck before conducting the FST. This advances the notion that he already made up his mind and was merely collecting evidence for the purpose of a prosecution.

You will also ask for computer aided dispatch. This is necessary for your case. It shows where the police officer is in your high dui blood alcohol case. This is critical in checking the times of the officer. Often times an officer may have a lapse in judgment or write a report later. This is critical in the 15 minute observation area. If the computer aided dispatch shows he pulled you over at 12:10 and he put down 12:00 in his report and the breath machine says 12:19 after the fifteen minute observation then that means he had 9 minutes to do all the observations give you field sobriety test then observe you for 15 minutes which is an impossibility

6

Breathe Test Flaws

The breathalyzer could have malfunctioned. It may not have been used properly by the officers. Your diet also has an effect on the breathalyzer. There’s a wide array of error since the breathalyzer tests the amount of alcohol and your breath, not in the blood.And so because of that if you burped, or had food in your teeth that alcohol soaked into; it can change the results on the test. Acid reflex and heart burns also affect the test since it pushes the acid from the stomach to the mouth. An Atkin’s diet produces isopropyl alcohol in the body since there is an absence of carbohydrates, and therefore can affect the Breathalyzers. Alcohol can take a while to get into the system. Your blood alcohol level could still be rising. The BAC at the time of the test is wrong, since it should be when you were driving. So the test could be much higher than when you were actually driving. Below are a few of the things that could go wrong with a breathe test.

Was there an error in your Breathe Test?

Breathe measuring instruments are machines that can break and even if they are working they are not accurate. 

Common Breath Test Errors


No 15 Minute Observation

Technically the officer doesn’t have to wait 15 minutes to make me blow for my DUI case; however, if the officer would be the wiser to make you wait as the evidence will not be strong against you if he didn’t wait. This is because of the concept of mouth alcohol. However, some states have incorporated this concept into their Drunk Driving Laws.

One of the many common causes of falsely high breath analyzer readings is the existence of mouth alcohol. In analyzing a subject’s breath test, the breath analyzer’s inside is creating the assumption that the alcohol in the breath test came from “Alveolar Air” that is, air exhaled from deep within the lungs. However, alcohol may have come from the throat, or stomach for a number of reasons. To assist protect against mouth-alcohol contamination, authorized breath-test operators are trained to observe a test topic carefully for at minimum 15-20 mins before administering the test. Some states have incorporated this into their Drunk Driving Laws.

There are many reasons for Drunk Driving Laws. They do not appear out of nowhere. The issue with mouth alcohol being analyzed by the breath analyzer is that it had been not soaked up through the belly and intestines and passed away through the blood to the lungs. The machine’s computer is mistakenly using the partition ratio (observe above) and multiplying the result. Consequently, a really tiny total of alcohol from the mouth or belly can have a significant impact on the breath-alcohol reading.

The common provider of mouth alcohol is from belching or burping. This causes the liquids and/or gases from the “belly” including any “alcohol” to rise up into the padded tissue of the esophagus and oral cavity, in which it will stay until it has dissipated.

Because of this police officers choose to keep a DUI suspect under observation for at minimum 15 mins for the purpose of administering a breath test. These instruments include the Intoxilyzer 5000. Some of these additionally feature a “slope” detector. This parameter finds any decrease in alcohol focus of 0.006 g per 210L of breath in 0.6 second, a condition indicative of residual mouth alcohol, and will result in an “invalid test” warning to the operator, notifying the operator of the existence of the residual mouth alcohol. PBT’s, however, feature no such protection.

Despite the Drunk Driving Laws to protect the public and find the truth there are many instances where mouth alcohol can come into play. This can involve a silent burp or a burp during the walk and turn. In addition many times a person will accidentally regurgitate than swallow. All these affect the level of alcohol in the mouth which ultimately affects the test.

Test during Absorption Stage

One of the main DUI Defenses is the Breathe test can be overestimated by up to three times if done during the absorptive phase. One of the most important and critical things in a DUI investigation is when a person stopped drinking.Why is this significant? Depending on this, a person can be in the elimination stage or the absorption stage or peaking. The body goes thru several stages of alcohol consumption. The breathe machines cannot tell which stage the body is in. There are several stages of alcohol pharmacokinetics. Alcohol is moving thru the body is never at a stable stage. This can be seen in the blood alcohol curve. A person’s blood alcohol measured by breath can be overestimated substantially if the person just recently drank.

This is why it is important that you never tell the police officer what you drank and when you drank. What people say after they’ve been arrested is more damaging than the actual drinking. It is important that a person must not give the officer a drinking time.

If a person is in the absorption stage then it is not possible to tell whether or not his blood alcohol content is over the legal limit at this time. Often people will make the mistake of telling the officer anything at all.

Two Examples

Scenario 1: You tell the officer you had 2 drinks 2 hours ago. He will decide to arrest you anyways. Those two drinks will be used against you. When it goes to trial, the state will say you had a consciousness of guilt which is the reason you lied. Your attorney will have to the extra work with the expert on establishing that there were more drinks involved and that this is an incomplete drinking pattern. Thus there is more to drink but there must be an assumption someplace about the time.

The Pros: Hopefully he will let you go if you cooperate.

The Cons: He has already made up his mind and is collecting evidence under the guise of letting you go. You will get arrested and the process will start.

Scenario 2: You tell the officer respectfully you do not want to answer any questions and ask if you are free to go. If not than go ahead and arrest you. If the officer has decided to arrest you then he will arrest you anyways. This is the ideal scenario in my opinion. There will be nothing to use against you. There will be no drinking pattern against you. I’d prefer this pattern with a .12% over a .10% with a drinking admission of 2 hours ago any day.

The Pros: You will be putting him on the spot and forcing him to arrest you. It will be much harder to prosecute you with the lack of evidence and drinking admissions and field sobriety test.

The Cons the officer will not like this and will make this an unpleasant experience.

Officers Failure to Follow Procedure and Regulations with the Breath Machine

One overlooked aspect of DUI Defenses is the Breath machine on the side of the road. To assist protect against mouth-alcohol contamination, authorized breath-test operators are trained to observe a test topic carefully for at minimum 15-20 mins before administering the test. Some states such as California have incorporated this into their Drunk Driving Laws.

Officers will administer test according to Title 17 if done for evidential purposes. But they will seldom do this for the preliminary alcohol machine. Officers do not technically have to wait 15 minutes to administer a breathe test to prevent mouth alcohol. However, it would make the job for the prosecutor much easier they did. This is because of the concept of mouth alcohol. There are precautions that an officer must take to protect the person being tested. One of these is the 15 minute observation to prevent alcohol contamination. One of the many common causes of falsely high breath analyzer readings is the existence of mouth alcohol.

In analyzing a subject’s breath test, the breath analyzer is creating the assumption that the alcohol in the breath test came from “Alveolar Air” that is, air exhaled from deep within the lungs. However, alcohol may have come from the throat, or stomach for a number of reasons.

DUI Defenses

There are precautions that an officer must take to protect the person being tested. One of these is the 15 minute observation to prevent alcohol contamination.

The issue with mouth alcohol being analyzed by the breath analyzer is that it had been not soaked up through the belly and intestines and passed away through the blood to the lungs. The machine’s computer is mistakenly using the partition ratio (observe above) and multiplying the result. Consequently, a really tiny total of alcohol from the mouth or belly can have a significant impact on the breath-alcohol reading.

The common source of mouth alcohol is from belching or burping. This causes the liquids and/or gases from the “belly” including any “alcohol” to rise up into the padded tissue of the esophagus and oral cavity, in which it will stay until it has dissipated.

Improper Maintenance

If there is a breathe machine at use in your case then you ask for calibration and maintenance records for your machine. This is done because machines are just those machines! Your high DUI blood alcohol case may be the result of an error. They have problems functioning.

6

Hiring an Expert for Your DUI

Experts are costly. Often time’s clients must rely on their attorney’s knowledge of the science to prevail and break down the state’s case in a California DUI. This is the case because the client can’t afford an expert. There are pros and cons to skip hiring an expert for your California DUI trial.

Pros: Having a knowledgeable attorney he knows enough to cross an expert is great. He will know the right questions to ask and will often know the science better than the prosecution witness. Plus the advantages of eliciting the testimony you want from the other side witness is much better than having your own expert testify to it. It lends more credibility. Plus you save the money. In Southern California the experts for trial can cost anywhere from 1500-2500 to hire an expert for your California DUI trial.

Con: Having an attorney knowledgeable on the science will not take you all the way. There will be things the expert simply will not concede or will just flat out lie. This happens a lot on elimination rates. I have seen one expert outright lie and say that elimination rates are .30 when it was convenient. Other experts will concede that elimination will be anywhere from .10 to .30. Absorption times are and assumptions on retrograde extrapolation are hotly contested areas. It is during these times that an expert will be helpful to lay things out.

7

Hiring an Expert for Your DUI

If your case involves blood a retest is also included. Blood collection is never perfect. The right alcohol swabs might not be used thus increasing your DUI blood alcohol. The wrong ones will have alcohol in them which can artificially push the alcohol up. Also, if there is no preservative in the vial then the blood can ferment. The blood will produce its own ethanol alcohol when this happens. A retest of the blood for the ethanol content and the amount of preservatives is recommended.

8

Using a 1538.5 Motion to Suppress exclude evidence on your case

Another common aspect of DUI Defenses is the motion to suppress. There are many things that an officer must do in order to legitimize a stop. An officer must have reasonable suspicion that a crime is going on before he can initiate a stop. Reasonable suspicion is defined as having a belief that there is criminal activity. In order for a cop to stop, investigate, and arrest you they must have this. In order for evidence to be properly used then it must be through legal procedures. This is due to the idea of that if evidence was gained through illegal methods it should be excluded. It will be able to be suppressed. Evidence that is suppressed is not allowed to be used against you if the judge suppresses it. As each step takes place there must be more convincing reason in order for a police officer to do say action.

Is your stop bad? 

It's important to use a 1538.5 motion if the stop in your case warrants it. It can result in the dismissal of your case.  

Recent Case Results -  A history of Success

Domestic Violence  - Orange County

  • Husband and wife fought. Police came and arested husband
  • No Charges Filed

Shoplifting - by a Teacher at South Coast Sephora

  • School Teacher Caught Shoplifting at Sephora South Coast
  • Case Dismissed without Diversion

DUI with Accident - 5 different drugs- City of Orange

  • Client hit 2 cars, 
  • Jury returned Not Guilty verdict in 45 minutes

2nd DUI - Orange County

  • Client accsued of rear ending another on 405 freeway.  Hieu Vu stopped the investigation by having client invoke rights
  • District attorney sent back for further investigation.

Public Intoxication - Huntington Beach

  • Intoxicated Client, passed out on Beach Blvd divider with soiled clothes.  
  • Case Dismissed

Driving on a Suspended License - Orange County

  • Client knew had suspended and got caught
  • Case Dismissed

Possession of Controlled Substance w Intent to Sale

  • Caught w 40 pills of MDMA 
  • Reduced to only posession

Cable Theft - Time Warner 

  • Client knowingly bought illegal cable tv/internet from unofficial channel.  Was looking at statutory damages of $10,000.00 
  • After Negotiations,  case settled w happy client an no criminal charges.

DUI - .Cypress  - .22 Blood alcohol level - DACA Client

  • Car was on sidewalk and client passed out
  • DUI Dismissed, client got a drunk in public.

Public Urination - Downtown Fullerton

  • Client caught penis in hand 1:50 at night prior to bars closing in Down Town Fullerton
  • Case dissmissed
  • Kept Criminal Record Clean

Failure to Appear - Orange County Bench Warrant

  • Client decided not to go to court and leave the country which resulted in a warrant.
  • Able to remove warrant which allowed client to return back into the country safely.

Driving on a Suspended License

  • Drove on suspended license and got caught..
  • Case dissmissed

Probation Violations - Orange County

  • Client agreed to probation and violated the terms and was facing jail time
  • Hearing resulted in no probation violation

Expungement

  • Client had 4-5 convictions which stopped her from getting a job.
  • Dismissed all case so she was able to answer she never got convicted. This resulted in her getting a job.

3rd DUI - Picked up 3rd in Westminster while 2nd case was Pending. 

  •  Was looking at 1 year in jail.
  • No jail and client is in program


About Hieu Vu

Tustin Criminal Defense Attorney

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“To the client, every angle is important, there’s a number of questions, and each person also have their own worries. Some will need a person to listen to them. At the end of the day, it’s more than just delivering legal results. I put a 110% into every person I work. I strive to make sure everyone knows what is going on and is kept in the loop as the case goes on. The practice of law is more than just getting the results in court.” -Hieu Vu

Tustin's Criminal Defense Attorney

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