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Understanding the Evidence Against You in a DUI Case

  • By: Ron Hedding
  • Published: December 24, 2019

One thing that will really help you understand and deal with your DUI case is if you understand how the prosecutors will present the evidence against you.  Really, what they have to prove in order to get you for a DUI is that you were driving with alcohol in your system and you couldn’t safely operate a motor vehicle.

That’s Vehicle Code Section 23152(a).  In that Section it really doesn’t matter what your blood alcohol level is; it matters whether they can show there’s alcohol in your system and it matters whether or not you couldn’t safely operate a motor vehicle. See CALCRIM 2110 Jury Instructions.

Ability to Safely Operate a Motor Vehicle

Then you start to ask yourself, how do they prove whether you could safely operate a motor vehicle and the answer to that is by a number of different factors.  (1) they’re going to look at your driving.

If you’re swerving all over the road or if you crashed into something, then obviously they’d have a pretty good argument that you can’t safely operate a motor vehicle.  That’s a far cry from somebody who is drunk.

A lot of people say, I wasn’t drunk.  You don’t have to be drunk.  You just have to not be able to safely operate a motor vehicle.

They’re going to look at your driving; (2) they’re going to look at how you’re walking around when you get out of the car.  If you’re staggering or if you can’t do those field sobriety tests which are supposed to be designed to determine whether you could safely operate a motor vehicle.

If  you’re failing those tests, then they’re going to have a good argument that you can’t safely operate a motor vehicle.

One way to present evidence to get somebody for a DUI is to show how they were driving and show how they were walking.  How about if you’re slurring your words and you can’t talk and they’ve got their bodycam evidence on you and a potential jury is looking at that and they’re saying, wait a minute.

This guy can’t even run a sentence together.  He probably can’t drive safely either.  They look at every single factor — how you’re talking, how you’re walking, how you’re driving, how you’re performing on the field sobriety tests.

Blood Alcohol Level is a .08 or Greater

Now another way to get you for a DUI and to present evidence is to show that your blood alcohol level is a .08 or greater. Because in California the law says, if your blood alcohol level is a 08 or greater, either by way of them taking your blood or by way of you breathing into a breath machine, then it’s going to be presumed that you can’t safely operate a motor vehicle.

So, that’s another way to get you for a DUI to present evidence that your blood alcohol level was a .08 or greater.  That’s California Vehicle Code Section is 23152(b).  So, you’ll notice that people who are charged with DUI’s are being charged with both Sections — 23152(a) and 23152(b).

One of them says you have alcohol in your system and you can’t safely operate a motor vehicle; the other one says you’re a .08 or greater.

If you get hit with a conviction for either one of them, it’s a DUI.  So, it kind of gives the prosecutors two bites at the apple — two ways to prove that you were driving under the influence of alcohol and to get the conviction.

A lot of times when the people go to court if they work out a deal and are going to plead to a DUI, they either can plead to the 23152(a) or the (b) count.  The prosecutors don’t usually care.  They’re both DUI’s and then they’ll just dismiss the other count.

Law Enforcement is Specially Trained for DUI Cases

So, when you’re talking about understanding the evidence, you have to realize that the police, the CHP — who are the ones who are usually nabbing people or the LAPD or anybody else in California who is able to pull people over and get them for a DUI, they’re specially trained.Understanding the Evidence Against You in a California DUI Case

When they’re driving behind you that’s when their investigation starts.  They’re going to be looking to see how your vehicle is driving and a lot of the cars are equipped with dashcams, so the dashcam is going to capture how you’re driving on the road.

So, if you’re swerving all over the road and almost hitting pedestrians, that’s going to be captured, and when they pull you over and ask you for your driver’s license and registration.

Then they ask you if you had any alcohol tonight and you say yes, I’ve had a couple, that’s the start of their investigation.

So, they’re going to be able to prove you were drinking as soon as you say that.  Whether that’s true or not, it doesn’t really matter.  They’re going to order you out of the car and they’re going to be looking to prove that you can’t safely operate that motor vehicle.

They’re going to ask you a bunch of questions.  They’re going to run you through a bunch of tests, ultimately ending with them either getting your blood or your breath.

DUI Blood or Breath Test

They’re usually trying to get your breath because it’s easier for them.  Trying to get blood is a little bit of a pain in the neck.  They either have to take you to a hospital and wait depending on how busy the hospital is.

They could also find a police station that can draw your blood and meet all of the evidentiary requirements to be able to preserve the blood so it can be used later on if the case were to go to trial, or if you decided you wanted to hire your own expert to test the blood and do what’s called a blood split.

Obviously, they’ve got to have the blood.  So, that’s more labor intensive for them, so they’re usually trying to angle people towards taking the breath test, making statements to them like, if you take the breath test we can let you out quicker.

If you take the blood test we can’t tell what our blood alcohol level is so we’re going to leave you in there a longer time.  So, most people just cooperate and take the breath test.

California Implied Consent Law

You have to take one of the tests.  The implied consent law says that.  If you don’t they’ll get you for a refusal.  It will be presumed that you’re driving under the influence of alcohol and you’ll automatically lose your driver’s license for a year, which obviously nobody wants.

So, understanding the evidence as it relates to your case is best explained to you by your DUI attorney because they’re going to have all the evidence from the police reports.

Also, the information from you and then they’re able to look forward, having done jury trials before and see how the prosecutors will present that evidence so you could really have a good feel whether you’d have a chance if the case were to go to trial.

Ron Hedding

About the Author Named Top Los Angeles DUI Defence Attorney by LA Times and named one of the Top 100 DUI Defence attorneys in California by the National Trial Lawyers Association. I'm the attorney other lawyers hire to defend them.