A lot of people will come to me and say, I don't understand how they have any proof of my DUI case against me.
There's a number of different ways that the legislature has set up to be able to prove DUI's in California. Because a lot of deaths occur on the road in Los Angeles, California legislature has a lot of different ways to prove a DUI, whether it be a felony or misdemeanor.
Blood Alcohol Level of .08 or Greater, Breath Test Refusal
One way obviously, is they've made it so that if your blood alcohol level is a .08 or greater, it's automatically presumed that you're DUI — driving under the influence and can't safely operate a motor vehicle.
Another way is people realize that if they blow, then they might incriminate themselves, so a lot of people say, I'm not going to blow — I'm not going to cooperate.
Well, that's another way to prove a DUI. If you refuse to cooperate and you refuse to take either a blood or breath test when the police believe that you're intoxicated, then that's called a refusal.
It's automatically presumed that you're DUI and the only way for you to avoid a DUI in that scenario is if you can rebut the presumption with evidence that you were not DUI at the time, which is obviously difficult to do unless you go take a blood or breath test.
If you refuse to do so, you're going to be taken into custody and probably held for a number of hours, so by then it would be too late anyway to take a blood or breath test.
Witnesses and Police Officer Testimony
Another way to prove a DUI is through witnesses. If somebody sees you driving recklessly and in an unsafe manner, that would certainly be evidence that you could not safely operate a motor vehicle.
Then the police would have to prove that you had alcohol in your system in addition to that. The way they prove that is by their observations.
The police — CHP especially — but also the LAPD — are all trained to perceive people who might be DUI's. They're going to look at how you're driving — whether you're driving like somebody who is drunk — they're going to smell your breath and see if there's any alcohol smell on it.
They're going to see how you talk — do you have slurred speech? They're going to see if you have bloodshot and watery eyes which is indicative of somebody who is DUI, driving under the influence. They're going to see how you walk — do you have an unsteady gait where you can't walk in a straight line.
They're going to ask you to perform a bunch of field sobriety tests..
If you fail those tests, that would obviously be evidence and they could testify to it as witnesses that you were driving under the influence. They're going to ask you whether you've had anything to drink.
A lot of people are honest and say they had one or two. A lot of times they're not telling the truth about that part of it, but once you admit you drank something, now they've got alcohol in your system.
So, there's a number of different ways that the police and prosecutors can prove that somebody is a DUI in Los Angeles, and it's very difficult to disprove that you're driving under the influence of alcohol.
The best ways to disprove that are for you to take the test and be under a .08. When you get your driver's license in California, you get it under the condition that if the police ask you to take a test that you cooperate with them and take it.
The theory behind that is, driving in California is a privilege and not a right — because you're out on the road where people can be killed. What comes along with that privilege is that if the police believe you're unsafe to drive because of alcohol use.
You must cooperate with the police and allow them to ascertain whether you are under the influence of alcohol by taking a blood test where they can measure your blood alcohol level, use experts to try and prove that you're under the influence of alcohol, and also a breath test which is also designed to determine whether or not you're under the influence of alcohol.
For some reason, legislature hasn't deemed, at least at this point, that you have to take the field sobriety test or that you have to take that hand-held device called the preliminary alcohol screening device.
They may change that at some point, but right now you don't have to do that. Unfortunately, a lot of people don't realize that so they end up taking those tests. It's a very subjective thing on the part of the police, so the police a lot of times are able to prove a DUI by just simply saying the person did not pass the test and then they prove they had alcohol in their system.
California Vehicle Code 23152(a)
California Vehicle Code 23152(a) allows proof of a DUI even without having a blood alcohol level, or even if your blood alcohol level is under a .08 — if you have alcohol in your system, the police can testify that you weren't safely operating a motor vehicle and in their opinion you can't safely operate a motor vehicle because you didn't pass those tests.
Then you're going to be in a position where you will be charged with a DUI, be subject to at least six months in jail for a first offense and also be subject to losing your driver's license because of the DUI.
So, if you have a case and are questioning after reading this whole article how the police and prosecutors can prove a DUI against you, come and sit down with me. We'll talk about what evidence they have, whether they can prove it or not and what your best strategy is.