Attacking The Evidence In A DUI Case

If you have been pulled over, arrested and charged for driving under the influence (DUI) in California, you may be able to successfully challenge the evidence that law enforcement has gathered against you. If you do not, you could face a costly conviction that strips you of your right to drive, forces you to pay steep fines and could even put you in jail.

Challenging evidence of a DUI is crucial to winning your case. Here are just a few of the tools that the DUI defense attorneys at Ernenwein & Johnson, LLP, can utilize.

Challenging The Traffic Stop

Nearly all of the evidence that you were driving under the influence is gathered after the police officer pulls you over. Before the traffic stop, the officer has very little evidence to go on.

In America, the police cannot just put their lights and sirens on and pull people over at random or because they feel like it. In criminal law, the police need to have some amount of suspicion that a crime, like DUI, has occurred before they can pull people over and start searching for evidence.

When they do not have a good enough reason to initiate a traffic stop for DUI, the whole traffic stop may be considered an illegal search that violates your rights. Any evidence found during an illegal search can be excluded from court and cannot be used against you.

Showing that the police did not have a good reason to pull you over and that your rights were therefore violated is one of the best defenses that a DUI defense lawyer can raise in a DUI case. This indirect way of challenging the DUI evidence against you can completely destroy the prosecutor's case and frequently leads to a dismissal of the charges.

Challenging The Allegations Of 'Objective Symptoms' Of Intoxication

In preparing their reports after DUI arrests, police officers will frequently make reference to a person's clumsy behavior, such as wavering, stumbling or general confusion. They will also often refer to a person's slurred speech or reddened, flushed face. All of these so-called objective symptoms of intoxication are also common reactions to extremely high-stress situations, such as confronting a police officer. Other symptoms frequently referred to by police officers, such as bloodshot or watery eyes, can be explained by fatigue, by long periods of driving time, or by allergies or airborne pollutants.

The objective symptom most frequently referred to by arresting officers, of course, is the powerful odor or smell of alcohol. It is important to remember, however, that alcohol is an odorless substance. When an officer refers to an alcoholic odor, he is actually smelling the flavoring of the alcohol, not the alcohol itself. Of all alcoholic beverages, beer usually leaves the strongest odor on a person's breath, yet it is one of the least intoxicating of alcoholic beverages.

Challenging DUI Evidence From A Breath Test

Despite the reassurances from law enforcement, breath tests can be highly inaccurate. Breath test machines have shown that they can be triggered by environmental influences like latent mouth alcohol, air bubbles from hiccups or burps, and even rotting food. These can make the breath test machine give back a reading that is much higher than your true blood alcohol concentration (BAC).

Additionally, these tests rely on the police keeping the machines in proper working order, regularly calibrating, testing and cleaning these devices. If these breath test machines are not kept in good repair, they can be wildly inaccurate, at an innocent driver's expense.

Challenging evidence that comes from a breath test is one of the most important ways that a DUI defense lawyer fights to protect your rights.

Challenging DUI Evidence From A Field Sobriety Test

Before even making an arrest, police in California usually ask suspected drunk drivers to perform field sobriety tests. These are physical tests that are meant to test your motor skills and ability to follow instructions; failing them can be used as a sign of inebriation.

Some field sobriety tests, like the walk-and-turn or the one-leg stand, can be difficult even for sober and athletic adults. If you are sober, but uncoordinated, over the age of 50, overweight or injured, you can have trouble completing these tests and end up giving police powerful evidence that they have cause to place you under arrest for driving under the influence, even if you were not impaired.

Even the horizontal gaze nystagmus (HGN) test is prone to producing false positives. This is the test where the police officer asks the driver to follow a pen, light or some other object with their eyes. The National Highway Traffic Safety Administration (NHTSA) has admitted that the horizontal gaze nystagmus test was only accurate 77 percent of the time.

If the police are relying on evidence that you were under the influence from field sobriety tests, having a DUI defense attorney can be a huge help because they understand how these tests are supposed to work, where they fail, where police can make mistakes and how to beat them.

Challenging The Blood Test Results

In cases where a blood test was used to determine your blood alcohol concentration, we will obtain a court order releasing the actual blood sample used in your case, and that sample will be independently evaluated for preservative level and blood alcohol concentration. Often, independent testing will reveal an insufficient preservative level, or a lower blood-alcohol level than was determined by the police laboratory.

In addition, our DUI law firm will examine the chain of custody of the blood sample. The chain of custody essentially consists of how the blood sample was retrieved by medical personnel and then transported to the laboratory. If there is a break in the chain of custody, this may affect the admissibility of the blood test evidence in court. Also, as your DUI attorney, we will determine who drew your blood sample. Under certain provisions of the California Vehicle Code, only certain qualified personnel can draw a blood sample. If an unqualified person drew your blood, then the results of that blood sample may not be admitted as evidence.

The 'Rising Blood Alcohol Defense'

Your blood alcohol concentration may not have been as high (at the time of your driving) as the prosecutor is alleging. Based on the circumstances of your case, we may be able to successfully argue that, at the time that you were driving, your blood alcohol was below the legal limit, and that the testing that occurred afterward shows your blood alcohol level as it was after you were driving.

If your preliminary alcohol screening test shows, for example, a level of .07/.08, and then a subsequent chemical test shows .09/.10, we may be able to convince the prosecutor or a jury that your blood alcohol was actually below the legal limit at the time you were driving, and that when you were tested, your body was still absorbing alcohol, thereby showing an artificially high reading.

In other words, your blood alcohol concentration may have been rising at the time of testing (because alcohol ingestion was not completed) and, therefore, your BAC level was actually lower at the time of driving.

Researchers have found that absorption can continue for an average of 50 minutes after a DUI suspect has stopped drinking. Tests (taken with Intoxilyzer models 4011A, 4011AS and 5000) have consistently estimated blood alcohol levels at excessively high levels during this average 50-minute time period (when compared to analyzed blood samples).

The 'No-Driving Defense'

In order to be convicted of DUI, California Vehicle Code Sections 23152 and 23153 both require that you actually have been driving a motor vehicle. But what things constitute driving?

Most of the time this is not an issue. The police usually observe the DUI suspect driving a moving automobile on a highway, such that this element is often taken for granted and, therefore, there is no contention about this issue. However, on occasion, the arresting officer has not actually seen the conduct that, irrefutably, constitutes "driving." Instead, the officer has probably found the DUI suspect asleep on the front seat of a car which is lawfully parked, keys in the ignition, with the transmission set to "neutral" and the headlights and wipers on.

The California Supreme Court drew a contrast between the term "drive," normally understood to require there have been "volitional movement of the vehicle," and the term "driver," which CVC §305 defines as someone who is "either driving or in actual physical control." The Court said that the phrase "actual physical control" does not appear anywhere in the drunk driving offense statutes. Additionally, the Court noted that because "driver" is defined as a person who drives or is in actual physical control, the two terms (drive vs. actual physical control) must have different meanings. Mercer v. DMV (1991) 53 Cal.3d 753,

Interpreting the law strictly instead of broadly, the Court held that being in mere actual physical control of a vehicle is not enough to constitute "driving." Therefore, for purposes of the California drunk driving statutes, driving actually requires that the person exercise volitional movement of the vehicle.

Mind you, whether you were actually driving and whether there was direct proof of your driving are two separate issues. The prosecutor can establish that you were driving "circumstantially," in other words, by inference from whether you were observed exiting the driver's side of your vehicle, the warmth of your engine and other tell-tale signs.

On the other hand, merely being found behind the wheel of a vehicle is not surefire proof that you were driving if the circumstances can show that you had pulled over to rest, your vehicle was off, you had been sleeping, or other facts indicating that you were in your car but had not been exercising "volitional movement of the vehicle." Based on the circumstances of your stop, our Torrance DUI lawyer (South Bay DUI lawyer, Los Angeles DUI lawyer) may be able to successfully advance this argument and have your case dismissed before or at trial.

Ernenwein & Johnson has been representing people charged with DUI for over 40 years combined. We have represented thousands of individuals before the DMV and in Court since 1987. As Former Los Angeles Deputy District Attorneys, we pride ourselves as experienced and compassionate attorneys. We fight for our clients to obtain the best possible result. We walk together with our clients throughout every aspect of their case including the DMV and Court. A more thorough explanation and a full evaluation of your case is available by calling or visiting the firm for a free consultation.

If you would like to speak to an attorney immediately, consider calling Ernenwein & Johnson: 424-552-3901.

Remember, your call or your visit to our office for a consultation is always free.