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What Role Does Your DUI Breath Level Play in Criminal Prosecution?

  • By: Ron Hedding
  • Published: September 25, 2019

Understanding The Role Your DUI Breath Level Will Have On A Criminal Prosecution in Los Angeles

When it comes to how high your blood alcohol level is — either by way of breath or blood — it’s probably the single most important factor related to a DUI case.  The reason for this is, because the higher your blood alcohol level, the more dangerous the prosecutors perceive you are on the road, the higher they are to charge you and the more of a punishment they will likely want when it comes to your case.

Enhancement for High Blood Alcohol Level

Prosecutor’s and judge’s consideration when it comes to a DUI case is the public’s safety.  So, if you have a high blood alcohol level, they’re going to charge you not only with the DUI but they’ll add an extra enhancement for having a high blood alcohol level.  They’re also likely to punish you more. DUI Breath Level in California

That punishment can come in the form of longer alcohol courses, jail time, Cal Tran, hospital and more program, longer probation — there’s a whole host of things that the prosecutors have when it comes to a DUI case.

The lower your blood alcohol level, the better position you’re in, especially if your blood alcohol level is close to a .08, today in California DUI law that gives you a fighting chance to actually win the case.  The reason for that is because the breath tests that are typically used to measure somebody’s blood alcohol level are not 100% accurate.

Breathalyzer Machines Are Not 100% Accurate

Even the prosecutor’s own expert witnesses would have to admit that the machine that’s being used at most police stations in Los Angeles county is not 100% accurate. There’s typically an error rate of .02.  So, that means if you blew a .08, you could’ve been a .06 and you can call an expert to testify to that and you can even get confirmation on that through the prosecutor’s own expert in a DUI prosecution.

Other things the prosecutors will try to rely on aside from your breath if it’s a close case is how you were acting, how you were driving, how you were walking, how you were talking, how your pupils were interacting to light and how you performed on the field sobriety tests.  These are all important factors that prosecutors look at in DUI cases.

So, I think the primary most important factor relates to how high your blood alcohol level was.  The closer you are to the .08, the better position you’re going to be in in order to either try to fight your case or mitigate it down to something less than a full-fledged DUI.  The best person evaluate what chances you have in a DUI case is your DUI defense attorney.

Developing a Defense Strategy For Your DUI Case

When I have someone come into my office, I’m typically asking them the same type of questions the prosecutors and judges are looking at, because I know ultimately when I have to negotiate the case, I’m going to have to deal with issues like how high your blood alcohol level was – what type of driving you were engaging in – how your breath smelled – how you did on the field sobriety tests – how you interact with these police officers – and how much time passed between the pull over and your driving.

Sometimes the police come up on somebody and that person hasn’t been driving for a long time.  Sometimes the police can’t even determine when you were driving.  That creates a huge problem in a DUI case because it puts them in a position of having to go against the defense’s argument, which is if you don’t know when the driving took place, how do you know what the blood alcohol level was at the time of driving?

In other words, if it was two hours that the police can pinpoint your driving and your blood alcohol level, for example, was a .10 at the time it was tested, how will they figure out what your blood alcohol level was two hours earlier.

Their expert is going to have to attempt to extrapolate backwards and figure that out and that’s not an easy thing to do.  They’re going to have to know how much you ate, what type of alcohol you were drinking, when you had your last drink.  There’s a whole list of things that prosecutors will need to evaluate and prove when it comes to a DUI case.

If your blood alcohol level is really high, you’re going to need an attorney because that is indicative that you were very dangerous on the road and could have killed somebody.

If on the other hand, your blood alcohol level was low and close to the legal limit, you definitely want an attorney because you have a chance to either get your case dismissed or at least get it lowered to something less than a DUI — like a wet reckless; a reckless driving; a speed contest; or some sort of traffic-related offense.

So, if you have a DUI and you’re worried about the blood alcohol level, you’re worried about what’s going to happen, pick up the phone.  Make the call.  We’re here to help.

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.