One thing you have to realize right off the top if you have a DUI and you're looking for answers is that every defense and idea will not apply to your case.
Each case is different, and you have to look at the facts of the case – what happened; how the arrest was made; what the blood alcohol level was, and a whole host of other factors – that would make sense to somebody who has been doing DUI's for 30 years as I have.
In California, prosecutors use two primary DUI laws to file charges against somebody for driving under the Influence. Vehicle Code 23152(a) VC makes it a misdemeanor crime to drive under the influence of alcohol, and Vehicle Code 23152(b) VC makes it a crime to drive with a BAC of .08% or higher. In most cases, a defendant is charged with both statutes.
Most DUI cases are prosecuted as misdemeanors but can be filed as a felony offenses under specific scenarios, like when you have prior DUIs on your record and if somebody was injured.
You must contact the Department of Motor Vehicles (DMV) within ten days of your arrest and request an administrative hearing.
If you don't, you will forfeit the right to a hearing, and your driver's license will automatically go into suspension after 30 days. If you retain a lawyer, they could request a hearing on your behalf and represent you.
If convicted of VC 23152 driving under the influence, the penalties will depend on various factors. Our Los Angeles DUI lawyer will explain this topic further below.
Can You Challenge the Blood Alcohol Level?
Some ideas for defending the cases that could apply to your case first and foremost; we want to assess whether we can attack the blood alcohol level.
In other words, the law says that if you're a .08 or greater, then you're technically DUI; you or your attorney would have to present evidence to try to refute that if you want to challenge a prosecution for a DUI across California. Most of the DUIs that I see are in LA county because it's so huge with so many people.
So, when you look at that blood alcohol level, the closer you are to the .08, the better you have to attack it. For example, if you blew a .08, there's an argument that the breath machine used to register that result is not 100% accurate and has an error rate of .02.
So, that means that you could be a .06. If we can prove that you are a .06, you're not above the legal limit, and you can mount a pretty solid argument that you're not DUI.
But also realize there are two sections under Vehicle Code Section 23152; one of them talks about the blood alcohol level. The other talks about whether you could safely operate a motor vehicle.
So, technically, you could be a .06, but still, be driving under the influence if you didn't pass all of the field sobriety tests, you were driving horribly, and police, in their infinite wisdom, believe you were DUI and can convince a jury of the same.
Can You Use a No Driving Defense?
Another angle you could try to use is that you weren’t driving. That happens all the time. Police come upon somebody who is stopped on the freeway, not moving, and the first thing they're going to try to do is to establish driving. They're going to ask the person:
- when did you drive the car there?
- how long ago was that?
- why did you stop here?
Once you start to answer those questions, you can usually provide the police with what they need to prove you were driving.
But I see all sorts of scenarios where the police didn't lock in that driving element, and then we have an angle to try to fight the case and argue that you weren't driving a motor vehicle.
How Much Time Has Passed?
Another issue that I see come up all the time that we could certainly use to argue your case is that too much time has passed between stopping your vehicle and taking your blood alcohol.
If you get stopped at 10:00 p.m. and don't take your blood alcohol level until three or four hours later, that will be a real problem for the prosecutors to try to prove.
Because the issue becomes not what your blood alcohol level was when you did the breath test but what your blood alcohol level was at the time of driving? So, they need to get that breath result close to when they are driving.
DUI Chemical Test Refusal
Another issue that I see come up is a refusal situation where they don't comply with the law related to refusal. They've got to tell you that if you don't take these tests, you'll lose your driver's license for a year.
They've got to sign under penalty of perjury, what you said after that. So, there are some boxes they have to check to contact you for a refusal.
But if they check those boxes, you have a real hard time fighting a refusal case because there's a presumption in the law that if you don't take the test, you must be DUI, and you have to rebut the presumption. In other words, you must prove that you weren't driving under the influence, which is very difficult.
Initial DUI Defense Strategy Meeting
So, these are just some ideas on how to attack DUI cases. There are other ideas that we can talk about when you come and meet with me, sometimes, we're able to lower the charges, and sometimes, we're able to get a complete dismissal.
But obviously, you've got to have an angle. Don't just buy these salespeople over the phone who are giving you all of this information, making it sound great like you can win your case but have no justification or substantiation for why you can win your case and what the angle might be.
You have to talk to an attorney, give them the information, and be honest, and then they can give you a good idea of what chances you have.
So, if you want the best, you've come to the right place. I've worked for the prosecutors. I've worked for a superior court judge, and I've worked for people just like you since the early 1990s. Pick up the phone now and ask for a meeting with Ron Hedding.
The Hedding Law Firm provides a free case review via phone or contact form.